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

HMT62-19 : LAWRENCE ZINHUMWE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

Irked by the conviction and sentence imposed by the court a quo, the appellant approached this court on appeal.

The appellant was convicted of indecent assault, as defined in section 67(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

He was sentenced to 18 months imprisonment of which 6 months imprisonment was suspended for 5 years on conditions the appellant does not within that period commit any offence involving sexual abuse for which he is sentenced to imprisonment without the option of a fine.

It is contented by the State, that, sometime in August 2018, at House Number 10109 Greenside Extension, Mutare the accused person, Lawrence Zinhumwe, with intent and knowing that Kirsty Zinhumwe had not consented, made her touch his penis realising that there was a real risk or possibility that Kirsty Zinhumwe may not have consented to it.

The State's case was that sometime in August 2018 the appellant asked Kirsty Zinhumwe, his biological daughter, aged 22, to touch and massage his penis which he alleged was painful.

It was the State's case, that, the complainant massaged the penis shortly after an epileptic attack.

The appellant raised two grounds of appeal against conviction:

“1. The court a quo erred when it failed to consider that due to the acrimonious relationship between the appellant and the complainant's mother, it was possible that the report was only made to fix the appellant.

2. The court a quo erred when it relied on character evidence, which was inadmissible, and also its prejudice outweighed its probative value.”

Against sentence:

“1. The court a quo did not give sufficient weight and value to the strong mitigatory factors; the appellant is an old family man who was convicted as a first offender.

2. The court a quo erred when it did not consider community service as a real option to a custodial sentence. Rather, the court over-emphasised the issue of deterrence and ended up passing a sentence not proportionate to the offence.”

The appellant's defence was basically that the allegations were fabricated by his wife with whom he had an acrimonious relationship.

He suggested that his wife, the mother of the complainant, manipulated the complainant into laying false allegations.

A close look at the record of proceedings reveals the evidence of both the complainant and the accused's wife.

The complainant's mother was not taken to task on the issue of infidelity being the cause of matrimonial problems between the couple causing the false allegations of indecent assault. The alleged infidelity, and manipulation of the complainant to give a false report was not placed before the court as an issue.

To then seek to criticise the court a quo for not taking into account, or not considering the acrimonious relationship between the appellant and his wife, as the source of allegations, is expecting the court to base its decision on speculation, moreso, considering the appellant did not meaningfully place this assertion before the court, either through the complainant's mother or through the complainant herself.

The complainant's mother's evidence was clear, that, upon observing the complainant's bulging stomach, she questioned the complainant who alleged witchcraft on the mother.

This prompted the parties to go to Chief Zimunya's court.

It was while there that the complainant disclosed the accused had requested her to caress or touch his male organ once after an epileptic attack.

That the complainant was epileptic and that whenever she had an attack the accused would attend to her in her bedroom and give medication is not in contention as both State witnesses, and the appellant, attested to that in the court a quo.

The appellant was also responsible for taking the complainant to prophets for help.

The complainant fell pregnant, and, at the time of trial, had given birth to a child was common cause although the author of pregnancy who fathered the child was not known.

The complainant's testimony was to the effect, that, on the day in question, the appellant gave her medication after an epileptic attack and caused her to touch and caress his manhood which he said was painful. She, without knowing what she was doing, or in that state of confusion, caressed the penis.

The complainant's evidence was not challenged by the appellant.

This was despite the fact, that, the complainant and the appellant enjoyed cordial relationship. In fact, the complainant looked up to the appellant for her well-being and welfare.

The complainant had no reason to falsely incriminate the appellant.

She in fact denied having been raped, and testified to one incident of being made to touch the appellant's manhood.

The court a quo considered the complainant as credible in material respects.

To that extent, the factual findings by the court a quo, in respect of credibility, cannot be faulted.

Moreso, given the appellant did not challenge the complainant's version.

I am alive to the fact, that, this is a case of a single witness's testimony and the court a quo could have done better by having detailed analysis showing elimination of dangers of false incrimination and also detailing that caution was applied.

However, lack of mention that the court was wary and cautious does not spell out lack of appreciation of the legal requirements where evidence assessed speaks volumes of how the court arrived at the conclusion.

In this case, the court a quo exercised special care and diligence to the sexual offence by taking heed of the complainant's evidence and that of the mother, the recipient of the report.

There was no evidence that the complainant was manipulated to falsely incriminate the appellant - her father.

The pregnancy and inquiry led to the allegations surfacing.

The complainant had no reason to falsely incriminate her father with whom she is in good books; in fact, she denied having been raped when it was suggested to her. This shows she was not being manipulated; and, infact, even the appellant himself did not challenge the complainant's evidence on indecent assault.

It is appreciated the appellant was not legally represented.

The record reflects the court a quo explained proceedings to assist the appellant where the appellant alleges allegations are as a result of matrimonial problems between himself and his wife; and, when she testified and the complainant testified, the appellant did not pursue the issue with the witness.

To then seek to blame the court a quo for the appellant's omission would be expecting the court to prosecute the matter for and on behalf of the appellant. That would be requesting the court to descend into the arena.

I am mindful to the fact, that, the court has a duty to assist unrepresented accused, but, surely, such assistance should not amount to descending into the arena so as to be the prosecutor, defence counsel, and adjudicator.

There is simply nothing from the appellant on the taking issue with the complainant and the mother's evidence of indecent assault as having been fabricated for the court to urge on and clarify the issue.

It is settled the Appellate Court can only interfere with the trial court's findings in circumstances where the findings of the court are not anchored on the record or amount to a misdirection: see San'anza v State HH590-10; see also S v Mpetha and Others 1983 (4) SA 262.

It is only where the findings of the trial court are outrageous and irrational the Appellate Court can justifiably interfere with the findings of the trial court.

In the present case, the trial court made a factual finding based on credibility of witnesses.

The complainant's account tallied with the mother's account of the report of indecent assault as recounted by the complainant not only to the mother but to Chief Zimunya.

That the complainant, the appellant, and the complainant's mother went to Chief Zimunya's court when the complainant's stomach had bulged, was not put in contention.

Further, that, the complainant stated the appellant caused her to touch his manhood was not challenged.

The complainant was consistent that the appellant did not rape her but caused her to touch his manhood after an epileptic attack.

The fact that she recounted what transpired during her mother's presence clothes the mother as a recipient of the report. Such evidence is admissible, and, in this case, it was corroborative of the complainant's version.

The first ground of appeal does not bring out anything meaningful to dent the conviction.

The complainant and her mother's evidence was not challenged.

That the appellant and his wife were having a turbulent relationship, on its own, does not render the complainant's assertion about how the appellant approached her after an epileptic attack and caused her to touch his manhood.

The trial court could not be expected to surmise and speculate that the allegations were fabricated in the absence of a challenge to what was said to have happened.

The first ground of appeal, in the circumstances, cannot be sustained.

Turning to the second ground, that the court erred by relying on character evidence to convict, equally crumbles for the obvious reason, that, the court's decision was not based or pinned on character evidence.

The trial court did not rely on character evidence to convict, but, noted, as common cause, that, the appellant has a history of incestuous relationship.

This emanated from the appellant's own admission during cross-examination by the prosecutor that he impregnated his niece (sister's daughter).

The court commented on a common knowledge or undisputed fact given by the appellant himself.

This was not the basis of conviction as reflected from the judgment.

The appellant was not convicted of raping or impregnating the complainant, but, of indecently assaulting the complainant by causing her to touch his male member.

The court made a finding on only one issue: whether the allegations were true or a fabrication.

The court relied on the complainant's evidence and made a finding that the complainant, who was very close to the appellant, her father, had no reason to falsely incriminate him.

Similar fact evidence is inadmissible to the extent that it is prejudicial to the accused person.

In this case, the appellant is the one who informed the court of impregnating a niece and that evidence was not the basis of conviction.

By commenting, or noting a common cause aspect, one cannot say the court relied on charachter evidence to convict.

The court took the complainant's evidence to be credible as there was no reason for her to fabricate allegations against the appellant, her father, whom she was close to.

The appellant only raised two grounds of appeal in a manner which, given possible legal issues, one could take as lack of diligence amounting to a disservice to client.

Both grounds cannot be sustained and thus the conviction stands.

Turning to sentence, during the hearing, counsel for the appellant conceded, that, in the event of conviction being proper, then, the indecent assault, not being ordinary, a custodial sentence would be appropriate.

He suggested 12 months imprisonment of which 6 months imprisonment is suspended on the usual conditions of good behaviour.

Sentencing is the domain of the sentencing court which has a wide sentencing discretion.

Only in circumstances where the discretion is injudiciously and improperly exercised should the Appellate Court interfere with the sentence imposed.

In this case, considering the nature of indecent assault; a natural father causing his own daughter to touch his manhood, the offence is deserving of an effective prison term.

The sentence imposed, even though it falls within the community service grid, considering the sentencing principles of matching the offence to the offender, it would be improper to consider community service as a suitable sentence.

Sexual violation of this nature, within a prohibited degree of relationship, is not only criminal but immoral, and, indeed, an abomination.

An effective prison term is appropriate.

It is not a matter of what sentence the Appeal Court would have imposed, but, whether or not the sentencing discretion was properly exercised by the sentencing court.

In this case, the sentencing discretion was judiciously exercised. There is no justification in interfering with the sentence; as such, the appeal against sentence cannot be sustained.

Accordingly, the appeal against both sentence and conviction is dismissed.

View Appeal SC57-13 : THE STATE vs TICHAFA MUHOMBA
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

The appellant was sentenced to twenty (20) years imprisonment of which three (3) years were suspended for five (5) years on the usual conditions of good behaviour….,.The appeal against sentence was on the ground that the sentence was unduly harsh and induced a sense of shock.The allegation was that the ...

The appellant was sentenced to twenty (20) years imprisonment of which three (3) years were suspended for five (5) years on the usual conditions of good behaviour….,.

The appeal against sentence was on the ground that the sentence was unduly harsh and induced a sense of shock.

The allegation was that the learned magistrate misdirected herself in the assessment of the sentence by placing less weight on the personal circumstances of the appellant particularly that he was a youthful first offender aged eighteen (18) years at the time of the commission of the offence.

It was also alleged that the learned magistrate over-emphasised the age of the complainant when there were no particularly aggravating features in the manner the rape was committed which would have justified a sentence more severe than sentences in similar cases….,.

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 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. In S v Mkombo HB140-10.., it was held that:

“The position of our law is that in sentencing a convicted person, the sentencing court has discretion in assessing an appropriate sentence. That discretion must be exercised judiciously having regard to both the factors in mitigation and in aggravation. For an appellate tribunal to interfere with the trial court's sentencing discretion there should be a misdirection. See S v Chiweshe 1996 (1) ZLR 425 (H)…,.; S v Ramushu and Others SC25-93.”…,.

In S v Nyamimba 2002 (2) ZLR 607 it was held that complainants in sexual cases are traumatised by the act of rape.

It is trite that an appeal court will only interfere with the discretion of a trial court where the sentence is disturbingly inappropriate or where the discretion of a trial court in respect to sentence has been exercised capriciously or upon a wrong principle. In S v Sidat 1997 (1) ZLR 487 (SC) it was held by McNALLY JA…, as follows:

“Once it is decided that there has been a material misdirection in relation to sentence then there has been a substantial miscarriage of justice. The appellate court is then at large to consider on the right facts, what an appropriate sentence should be. In so considering, it is not fettered by a consideration of the sentence by the lower court.

If, on the other hand, there has not been a misdirection by the lower court, then there can only have been a substantial miscarriage of justice if the sentence is 'disturbingly inappropriate' or 'so severe as to induce a sense of shock.' Lacking a misdirection, in other words, the court will not be 'at large' and will only be able to interfere if the severity of the sentence amounts to a substantial miscarriage of justice.”

The court is not at large to interfere with the sentence imposed by the trial court and confirmed by the court a quo.

The appeal against sentence thus has no merit and it must also fail.

View Appeal SC57-13 : THE STATE vs TICHAFA MUHOMBA
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

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…, it was ...

HMT07-21 : GABRIEL MUKAMBACHAZA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 30 September 2020 we dismissed an appeal against sentence lodged by the appellant. We gave an ex tempore judgment and undertook to avail the written reasons in due course.

These are they.

The appellant was convicted by the Regional Magistrate, Mutare following his plea to Robbery as defined in section 126(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The brief facts of the matter being, that, the appellant, together with accomplices, used force and violence threatening the complainants with a pistol, machete, using a rope to assault the complainants caused the complainants to relinquish control of a Chubb safe containing USD$25,000; 97 grams gold; US$5,000; 1 HP Samsung laptop; 2 cell phones; Samsung galaxy tablet; and 2 wrist watches.

The property of total value US$35,690 of which only property of value US$1,200 was recovered.

Pursuant to the plea of guilty the appellant was convicted and sentenced to 12 years imprisonment of which 3 years imprisonment was suspended for 5 years on usual conditions of good behaviour and a further 2 months imprisonment suspended on conditions of restitution leaving an effective sentence of 7 years imprisonment.

The appellant's accomplice, who had a previous conviction, was sentenced differently for the obvious reason that he was not a first offender.

He was sentenced to 12 years of which 2 years were suspended on conditions of restitution and the previously suspended 6 months prison term was brought into effect. The accomplice had an effective prison term of ten and a half years imprisonment.

The appellant, dissatisfied with the conviction and sentence imposed on him by the trial court, lodged the present appeal.

The appellant abandoned the appeal against conviction and persisted with the appeal against sentence.

The appellant raised five (5) grounds of appeal as follows:

“1. The court a quo erred in passing an excessively harsh sentence that induces a sense of shock.

2. The court a quo erred in failing to appreciate that the appellant was a first offender who pleaded guilty to the offence and therefore deserved lenient sentence.

3. The court a quo erred in failing to note that the sentencing trends have since changed and courts must endeavour to pass corrective, educational, and retributive sentences as opposed to punitive sentences that condemns and destroys the offenders.

4. The court a quo erred in paying a lip service to the strong and compelling mitigatory factors advanced by the appellant which should have resulted in substantial reduction of sentence.

5. The court a quo erred in imposing a similar sentence with co-accused who had previous convictions in circumstances where appellant was a first offender and ought to have been treated differently with his co-accused.”

The appellant, in his prayer, suggested a sentence of 5 years imprisonment of which 2 years is suspended on conditions of good behaviour. A further 2 years suspended on conditions of restitution, leaving an effective 1 year imprisonment.

During the hearing, counsel for the appellant suggested 6 to 7 years sentence, 2 years being suspended on conditions of good behaviour, and 3 years for restitution, leaving an effective 1 or 2 years.

I propose to comment on reasons for the variance in the suggested sentences later.

The brief facts of the matter are as follows:

The appellant, together with two (2) accomplices, hatched a plan to rob the complainant at his place of residence.

The appellant was armed with a pistol while his accomplices were each armed with a rope and a machete. The appellant and accomplices approached the complainant under the pretext of selling gold to him. The appellant and accomplices then produced the weapons, including pointing a pistol at the complainant, while at the same time demanding money.

By using force and violence, the appellant stole US$25,000; phones; laptop; a Samsung galaxy tablet; wrist watch; and 97 grams of gold.

The total value of property stolen is US$35,690 of which property of value US$1,200 was recovered.

A reading of the record of proceedings reveals the Magistrate's reasons for sentence.

The trial magistrate ably weighed the circumstances of the matter in conjunction with mitigatory and aggravatory factors. The trial court appreciated the sentencing principle of matching the offence to the offender and ensuring that justice is done.

In an appeal against sentence, the question is not really whether the sentence imposed is wrong or right neither is it a matter of suggesting, that, if I was presiding over I would have imposed 6 years and not 7 years: see Muhomba v State SC57-13.

What falls for consideration is simply whether or not the sentencing court properly and judiciously exercised its sentencing discretion.

I earlier mentioned, that, the appellant's counsel oscillated from suggesting a sentence between 5 and 7 years in a clear indication that sentencing task is a discretion aspect which is not stone casting to the extent of sentence being one size fits all.

What is central in assessing an appropriate sentence is the fact, that, the sentencing court considers all the circumstances of the matter, the nature of the offence, the offender, and precedents on similar offences; weighing the offence to the offender in a manner enabling attainment of justice.

The first ground of appeal, that the sentence passed is excessively harsh and induces a shock, cannot be sustained when one looks closely at the well-reasoned basis for sentence.

A gang, armed with weapons, including a pistol, used force and violence to induce submission into taking property of high value.

A sentence in the region of 12 years, with portions suspended for good behaviour and restitution, is in sync with sentences imposed for gang, armed robbery.

This ably dispels the third ground of appeal.

The second ground, that the court a quo failed to appreciate that the appellant was a first offender who pleaded guilty, is just an assertion not backed by any substance.

The court a quo actually recognised the plea of guilty and that the appellant is a first offender.

The court did not pay lip service to the plea as evidenced by suspension of three (3) years on conditions of good behaviour. The plea of guilty, and that the accused is a first offender, was reflected and credited by suspension of a portion of the sentence on conditions of good behaviour and suspension of another portion on conditions of restitution.

The criticism of the trial court, on not having due regard and credit to the plea of guilty, is baseless.

The fourth ground of appeal, again, crumbles since the court a quo considered all mitigatory factors.

The last ground of appeal, that the court a quo erred by imposing a similar sentence to the appellant's co-accused who had a previous conviction, is false.

It is settled, that, co-perpetrators should ordinarily be treated uniformly when it comes to sentence. Different sentences should only be imposed in circumstances where it is just to differentiate perpetrators who, acting with common purpose and in concert, accomplish an unlawful enterprise.

In this case, the co-accused and repeat offender, was sentenced to 12 years of which 2 years were suspended on conditions of restitution. Nothing was suspended on conditions of good behaviour as was done for the appellant. The suspended prison term of 6 months, emanating from the previous conviction, was also brought into effect. The appellant's effective prison term of 7 years is certainly not the same as the ten and half years effective prison term for the co-accused.

The last ground of appeal lacks merit and therefore it cannot stand.

It is apparent, that, the court a quo was alive and conscious to sentencing principles. All relevant factors, namely, the plea of guilty, aggravatory and mitigatory factors, and circumstances of the case were properly canvassed in an endeavour to come up with an appropriate sentence.

See State v Makunike 2015 (2) ZLR 404 in which the court emphasized the need to consider the aims of sentencing in deciding an appropriate and proportionate sentence for each individual case.

Both counsel, in their heads, cited relevant cases of robbery and/or armed robbery which reveal the trend in sentence for the serious and prevalent offence of robbery, which, invariably, involves pre-meditation and determination.

See Farai Kambarami and Another v The State HH273-14; Bothwell Taurai Nyamade v The State HMT06-20; and S v Madondo 1989 (1) ZLR 300 (H).

In S v Madondo 1989 (1) ZLR 300 (H), comments by GREENLAND J…, are pertinent…,.:

“The starting point is to accept that robbery is an inherent serious offence. It may properly be regarded as iniquitous as it usually involved premeditation, criminal resolve and purpose, brazen execution, and attack on a human victim with the attendant disregard of that person's right to personal security and forceful dispossession of whatever property the victim has; for the victim is often terrifying and degrading experience. He is injured in his person and property. The perpetrator acts with contempt and callousness. It is therefore proper to regard robbery as particularly reprehensible form of criminal behaviour and that attitude should be reflected in the sentence.”

In the present case, the court a quo cannot be faulted for imposing an effective prison term for a robbery committed in aggravatory circumstances.

An armed gang forcefully executed the unlawful enterprise and got away with property of high value.

The trial magistrate, in reasons for sentence, revealed a clear thought process culminating in the sentence imposed.

The sentencing court has a discretion which should not be lightly interfered with. The sentence imposed should only be interfered with in situations where the sentencing court would have injudiciously exercised its discretion leading to glaring serious misdirection amounting to injustice: see S v Mungwenhe 1991 (2) ZLR 66; Rumushu and Others v The State SC25-93.

In the present case, there is no misdirection evinced by the court in the manner it assessed an appropriate sentence. The sentence imposed is in sync with sentences imposed in cases of similar nature: see Mpolis Ndlovu and Anor v The State HB266-18 for robbery of similar nature, a sentence of 12 years effective was confirmed.

In this case, the trial court, in full appreciation and recognition of the totality of the circumstances of the matter, assessed a befitting sentence that meets the justice of the case. There is clearly no basis for interfering with the sentence imposed by the trial court.

All the grounds of appeal raised have no merit, and, as such, they cannot be sustained.

Accordingly, the appeal is dismissed.

HMT10-20 : JERRY MUSIMWA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellant was convicted at Mutare for contravening section 93(1)(b), that is, kidnapping or unlawful detention; it being alleged, that, on Saturday 6 August 2019, at Zuva Service Station, near Mutare Polytechnic, Mutare, the appellant lifted and carried Pressly Tafara Mubaiwa, a juvenile, on shoulders and attempted to put him in the boot of a Toyota Runx.

He had pleaded not guilty and he was sentenced to 24 months imprisonment; 6 months imprisonment was suspended for 5 years on the usual conditions of future good behaviour.

On 24 September 2019, the appellant noted an appeal against both conviction and sentence and spelt out his grounds of appeal as follows:

“Ad Conviction

1. The learned magistrate erred and misdirected himself both on facts and the law when he failed to consider and appreciate that the appellant, together with his co-accused, had paid an admission fee of guilty fine at the police station and thereby deserved to benefit and obtain protection from the concept of a plea of autrafois convict.

2. The learned magistrate further erred and misdirected herself at law and fact when he convicted only the appellant and acquitted his co-accused yet all the accused had faced the same charge and evidence.

3. The learned magistrate erred and misdirected himself at law when he convicted the appellant when the evidence against him was insufficient to found and support such a verdict.

4. The learned trial magistrate erred and misdirected himself at law when he injudiciously failed to accord the appellant a fair trial.

Ad Sentence

1. The learned magistrate misdirected himself at law when he failed to exercise his sentencing discretion appropriately and properly.

2. The learned magistrate misdirected himself at law when he failed to appreciate that the sentencing provision of the offended section reposed in a sentencing court the option of a fine.

3. The learned trial magistrate erred and misdirected himself at law when he failed to consider community service as an option when he had settled for a term of imprisonment of 24 months.”

The appeal is being opposed by the respondent.

Background

The appellant is aged 25 years and resides at No.79 Josiah Tongogara Street, Palmerstone, Mutare. The complainant is a male juvenile aged 12 years and resides at No.9437 Dream House, Chikanga 3, Mutare. He is a student at Mutare Junior Primary School, Mutare.

The complainant and appellant are strangers to each other.

On 6 April 2019, at around 0645 hours, the complainant and his school mate, Nyasha Chitashara, were on their way to school when suddenly upon their arrival at Zuva Service Station the appellant, who was in the company of three other colleagues, stopped their motor vehicle a couple of meters from where the complainant was.

The appellant opened the door of the motor vehicle from where the complainant was seated in the car and disembarked. The complainant saw him, the appellant broke an empty beer bottle and started running towards where the complainant was shouting “mbavha, mbavha” (thief, thief).

The complainant was shocked and overwhelmed by the fast unfolding of events; he tried to run away, but, unfortunately, he could not go far;,the accused caught up with him, grabbed hold of him, lifted him up, and placed the complainant to his shoulders and carried him away.

The complainant yelled out.

Meanwhile, Nyasha Chitashara ran towards Zuva Service Station.

The appellant took the complainant to where the car was parked, and tried to place the complainant into the boot of the car.

During that process, perchance, the complainant wittingly decided to sink his molars into the hand of the appellant; out of pain, the appellant fortuitously released the complainant, who dropped to the ground and escaped from the appellant.

When Nyasha Chitashara ran towards Zuva Service Station, he spotted a police detail who had gone to the filling station to get fuel; he alerted him. The police detail got into his car and drove to the scene, but he was late, the appellant's co-accused sped off at high speed.

Nyasha was convinced that his school mate was stashed in the boot of the appellant's motor vehicle.

In a Hollywood style, the police detail gave chase but could not apprehend the quartet.

The appellant and his colleagues were subsequently arrested and charged for public nuisance; they all paid a fine.

However, for kidnapping, they were referred to court.

They were prosecuted, and, at the conclusion of the trial, three other co-accused were acquitted and the appellant was convicted.

Counsel for the appellant, in his heads, correctly admitted that the appellant detained the complainant, albeit, briefly; but, argued that the facts of the matter best present all features of the de minimis principle and relates to matters of time and also space and other factors; he pictorially portrayed the entire scenario to the children's game of kutamba chikudo (“baboon play”) - in other words, he argued the court not to wary itself over children's play.

Baboons are social animals which guard, jealously, against strangers - even from another baboon group. They will co-operate to light the intruder or stranger from their affiliate. It therefore necessarily means the game of chikudo is played by friends or acquaintances, socially close associates - not between or among strangers.

Equally so, it is played by people known to each other and during leisure time - not at a fuel station or in the streets.

The appellant stays in Palmerstone, a low density suburb in Mutare; the complainant stays in the High density suburb of Chikanga 3. The two are not peers - they are total strangers; even their age difference is so wide that the type of game alluded to by the appellant could not be played between the two - worse between strangers; and, further, could not be ideal between a drunken adult stranger and a school pupil.

When the appellant uplifted the complainant, the latter cried out, apparently showing his displeasure about the appellant's conduct, and bit the appellant when the complainant realized that he was going to be stashed in a boot of a motor vehicle.

We are not convinced by the appellant, that, we should treat this offence as a de minimis.

Section 93(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] incorporates the requirements of an accused's realisation of real risk or possibility that what he or she will be doing will be unlawful.

When the complainant ran away from the appellant, yelled when he lifted him up, and bit the appellant, the appellant ought to have realized that the complainant did not like what the appellant was doing.

Worse, one would pose a further question: what would have happened if the appellant had managed to place the complainant into the boot?

The appellant wants to bury his head in the sand and throw a red herring to the court by pleading intoxication. He failed to convince the trial court, and, worse still, could not pursue it before us.

In any case, that aspect is only but mitigatory; it is not a defence to the charge of kidnapping.

In any case, most facts of what happened on the day in question are, to us, common cause; and, from the defence papers, they admit so.

We are thus satisfied, that, the conviction of the appellant is unassailable and the appeal against conviction has no merit.

HMT10-20 : JERRY MUSIMWA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

“Ad Conviction

Ad Sentence

Background

On the aspect of sentence, the appellant submitted, that, the court a quo failed to judiciously exercise its discretion.

We have had the opportunity to scrutinise reasons for sentence preferred by the learned magistrate; we fail to see where the alleged misdirection is.

Counsel for the appellant was asked by this court to fathom for a moment what was going on in the mind of the complainant when the appellant shouted “thief, thief” breaks a beer bottle and run after the complainant; grabbed him and ferry him towards a stationery motor vehicle; and attempted to place him in that boot.

For a child of twelve years, it was an emotionally-packed experience; deep apprehension and scary; which can lead to lifetime hallucinations and nightmares at night.

The conduct of the appellant was reprehensible and terrible to imagine.

Indeed, we agree that the trial court was correct in stating that community service would trivialise the granting of the offence - even if the unlawful detention was for a second. The hallmark of fear left on the complainant is unbearable in our view.

The sentence passed by the court a quo is appropriate and befits the crime.

The appeal against sentence has equally no basis.

HMT11-20 : CHARLES FAIRA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 22 January 2020, we dismissed the appeal in this matter after hearing counsel and indicated that our reasons would follow. These are they.

On 15 July 2019, the appellant was convicted and sentenced to 10 years imprisonment for contravening section 89(4)(b) of the Post and Telecommunication Act [Chapter 12:05]: it being alleged, that, on 6 December 2018, and near PG Safety Glass Workshop, along Vhumba Road, Mutare, the appellant, without lawful cause, cut and stole 20.06 kilogrammes of underground telecommunications line belonging to or used by a communication licence holder.

Secondly, the appellant was also convicted and sentenced to 6 months imprisonment, which was to run concurrently with the ten years in Count One, for contravening section 40(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for possession of articles for criminal use; the State alleged, that, on 14 December 2018, at House No.6 Lister Road, Hospital Hill, Mutare, the appellant, without lawful excuse, had in his custody or possession articles for criminal use in theft; that is two (2) bolt cutters; hacksaws; one (1) unfunctional pellet gun; and an electric shocker.

The appellant noted an appeal against both conviction and sentence in Count 1.

He outlined the grounds of appeal thus:

“1. Ad Conviction

1.1 The Learned Trial Magistrate erred and misdirected herself at law when she accepted the evidence of Christopher Tsuro, an accomplice witness, who testified without being warned in terms of the law.

1.2 The Learned Trial Magistrate further erred and misdirected herself at law and fact when she convicted the appellant on circumstantial evidence which was susceptible of many deductive and possible inference.

1.3 The Learned Magistrate further erred and misdirected herself when she accepted the evidence of Detective Mavhengere in as far as it related to the search and recovery of items from No.6 Lister Road, Hospital Hill, Mutare. The search and seizure was undoubtedly without warrant and was in clear violation of the law and the appellant's rights.

1.4 The Learned Magistrate further erred and misdirected herself when she convicted the appellant when it was clear from objective evidence that appellant had not “wilfully damaged or interfered with the telecommunication lines and apparatus.”

2. Ad Sentence

2.1 The Learned Magistrate erred and misdirected herself when she failed to interrogate or investigate the existence or otherwise of special circumstances.

2.2 The Learned Magistrate further erred and misdirected herself when she failed to accept and recognise the existence of special circumstances in the case. In particular, among other things, the mere fact that appellant was an accessory after the fact was sufficient to find the existence of special circumstances.

2.3 The Learned Magistrate further erred and misdirected herself when she totally, injudiciously, forgot and ignored sentencing the appellant for his conviction on Count Two.”

Facts

On 6 December 2018, near PG Safety Glass Workshop, along Vhumba Road, Mutare the appellant, in the company of three other outstanding accomplices, used a bolt cutter, cut and stole about 58 metres of underground telecommunication copper cables.

The appellant proceeded to hire Christopher Tsuro's motor vehicle which he directed to the same to ferry the stolen cables.

Upon arrival at the scene, the appellant and his accomplices loaded the cables into the boot of the vehicle.

They were disturbed by the passer-by and left some of the stolen cables at the scene.

The appellant ferried the cables to No.6 Lister Road, Hospital Hill, Mutare.

On the same date, detectives recovered 4 x 2 metres of black copper cables which were left by the appellant at the scene.

Christopher Tsuro led the detectives to the appellant's residential house and found the appellant inside the house.

The detective made a search inside the appellant's house and recovered 3 small pieces of copper wire; 2 bolt cutters; 1 shifting spanner; 1 spanner; and 2 weighing scales.

The detectives also recovered shells of red and black telecommunication copper cables packed in one blue and white sack which were placed on the backyard of the rented house.

The recovered cables were weighed at Zimpost and weighed 20.06kgs. The value of the stolen telecommunication cables was given as $2,500 and cables valued at $400 were recovered.

According to the appellant's Defence Outline, he denied wilfully damaging, interfering, or stealing the telecommunication lines and apparatus. He stated, that, he did not have knowledge about the alleged damage, theft, or interference.

He only received a call from one Courage to find a taxi so that Courage would ferry his property home. Courage never revealed to the appellant on what exactly the property was.

He denied being in possession of the stolen cables....,.

On the date of hearing, counsel for the appellant submitted, that, the trial court erred and misdirected itself when it accepted the evidence of Christopher Tsuro, whom the defence labels an accomplice witness in terms of section 267 of the Criminal Procedure and Evidence Act, and, such failure to do so by a magistrate would amount to a misdirection, and, consequently, should lead to a conviction being set aside by an Appeal Court.

A number of cases were cited by the appellant's counsel to move the court to decide on the aspect of failure by a trial court to warn a suspect witness: see S v Ngara 1987 (1) ZLR (1) 91; The State v Malinga 1963 (1) A 692 (AD); R v Simakonda 1956 REN 463 (SR); S v Chouhan 1986 (2) ZLR 237 (S).

Christopher Tsuro was the driver of the Honda Fit, the taxi, which was hired to ferry the cables by the appellant.

When Christopher Tsuro led the detectives to the appellant, the State chose to exonerate him and made him its witness who provided a link between the cables and the appellant.

A taxi driver provided transport to his clients, and, like an ambulance driver, his task is endowed with confidentiality and privacy in protecting his stainless customers; but, where a customer is implicated in a criminal activity, the taxi driver has a noble duty to assist the State in resolving an investigation.

The appellant, upon his arraignment, did not implicate the taxi driver; he confirmed Christpher Tsuro's version about the hiring of the Honda Fit by the appellant to ferry the luggage to its destination.

We cannot, therefore, describe Christopher Tsuro as an accomplice; and, we are satisfied, that, there was no legal basis by the court a quo to warn Christopher as an accomplice witness.

The appellant further submitted, that, the trial court erred and misdirected herself at law and fact when it convicted the appellant on the basis of circumstantial evidence when it was clear from the objective evidence that the appellant had not wilfully damaged or interfered with the telecommunication lines and apparatus.

The appellant added, that, there was no link between the recovered cables and the cables from the scene of the theft, or, alternatively, with the cables which were damaged or vandalised. There was no witness who was called by the State to state that he saw the appellant cutting off the cables.

The argument by the appellant is speculative in our view.

Christopher Tsuro told the court what happened on the day in question; he was hired to go with the appellant to the place where the cables were loaded. The appellant actively assisted his colleagues and paid for the hire; he used the money from his pocket; when the taxi driver demanded a top up, the appellant paid him $9 more.

When the detectives were led to the appellant's residence, they found the cut cables which were positively identified by an officer from Tel-One.

The appellant had in his possession all tools akin to the cutting and weighing of cables for sale.

The logical reasoning by the learned magistrate, pertaining to this aspect, is beyond reproach in our view.

Indeed, circumstantial evidence in this case, was conclusive, and, the only reasonable inference in the circumstances pointed to the appellant having damaged the telecommunications cables, packed them in sacks, hired a taxi, and transported them to his house.

This conclusion is not detached from the proven facts highlighted herein above and we are satisfied, beyond reasonable doubt, that, the inference was properly reached by the trial court.

Ground number 3 of the appellant's notice of appeal attacked the search and seizure of the cables and tools as being in violation of the law and the appellant's rights.

However, during arguments on appeal, the appellant wittingly, or deliberately, abandoned that line of argument. Had he pursued it, we could have also canvassed it in our judgment.

We take it that failure to pursue the ground of appeal means the appellant was no longer desirous of pursuing it.

We deem it abandoned.

As regards the aspect of sentence, ground number 7 of the appellant's notice of appeal states, that, the trial court erred and misdirected itself when she totally injudiciously forgot and ignored sentencing the appellant for his conviction on Count Two.

During the hearing of the appeal, counsel for the appellant was asked by the court whether he was still pursuing the appeal vis-a-vis Count Two.

He confirmed that he was not.

This would remain with the question whether special circumstances exist in this case which would enable the trial court to avoid the mandatory sentence of ten (10) years.

The appellant contended, that, the fact that he was an accessory after the fact was sufficient to find special circumstances.

No other aspect was advanced by the appellant's counsel to constitute a special circumstance; and, we have carefully examined the record of proceedings, more particularly on the issue of special circumstances.

We were unable to find any.

Even during hearing of the appeal, the appellant could not substantiate any that would amount to special circumstances.

Hence, we do not see any perceived misdirection at the instance of the court a quo on the issue of sentence.

Accordingly, the following order is granted:

The appeals against both conviction and sentence are dismissed.

HMT16-20 : PAUL MUHABE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

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 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour; of the remaining 20 months, 5 months imprisonment was suspended on condition that the appellant restitutes the complainant. In addition 2 months imprisonment suspended previously were brought into effect.

The appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:

“1. Ad Conviction

1.1 The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.

1.2 The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the State closed its case.

1.3 The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions, complainant's version was more plausible.

1.4 The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the State to buttress this point.

1.5 The Learned Magistrate erred by rejecting appellant's defence that the engagement was over the issue of bales and a laptop; a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.

2. Ad Sentence

2.1 The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.

2.2 The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.

2.3 The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant by failing to consider the imposition of community service in lieu thereof.

2.4 The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.”

FACTS

According to the State Outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare. The complainant, Cain Qongo, resides in Chivhu; he is unemployed.

Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients.

On an unknown date, but during the same month, the complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place.

Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant, who was desperately in need of a place, warmed up to the appellant and asked for assistance to get a training place at the institution.

The appellant indicated to the complaint, that, he would facilitate a training place for the complainant at the college. He told the complainant that his place was automatic and that he should deposit $940 into the appellant's Steward Bank Account so that the appellant would tender the money to the college as school fees. The appellant asked for the complainant's particulars and dismissed him later after telling him to wait for the next intake.

On 26 October 2017, the complainant deposited $940 into the appellant's account.

From that day, the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail.

The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone.

Later, the complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him.

On the same day, the complainant made a report at Mutare Central Police leading to the arrest of the appellant.

Total value of prejudice is $940 and nothing was recovered.

The following aspects were, on hearing of the appeal, found to be common cause:

(1) Appellant met complainant and complainant deposited an amount of $940 into appellant's account.

(2) After the payment of $940 by the complainant to the appellant, appellant became elusive till he was arrested.

(3) The appellant admits that he did not refund the $940 to the complainant up to this date.

Although the appellant admits that he was paid $940 by the complainant; he denies that the money was for the facilitation of assisting the complainant to get a training position at Mutare Polytechnic.

The court a quo analysed the credibility of the complainant's evidence and believed the complainant - we fail to see any basis for upsetting that given the issues of common cause outlined herein.

The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry, thus, he decided to lodge a report with the police.

The appellant, in his heads of argument, submitted, that, the complainant's evidence was packed with inconsistencies which were never clarified by the State. He further averred, that, the court a quo made a comparison between testimony of the complainant and the appellant's version and adjudged that the version of the complainant was plausible.

We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion, that, there were no inconsistencies allegedly perceived by the appellant at the complainant's evidence.

Given the fact, that, there was no eye witness relating to what transpired between the appellant and the complainant, there is nothing untoward done by the trial court in adjudging the veracity of both the appellant and the complainant's version before reaching the decision the court did.

In any case, the conduct of the appellant in this matter left a lot of issues unexplained, more particularly, as to why he avoided the complainant when he knew that he had not paid back the $940 nor found a place for the complainant at Mutare Polytechnic.

The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing.

We are satisfied, that, the appeal against conviction has no merit and the concession made by the State does not find favour with us and we reject it.

The appeal against conviction is dismissed.

HMT16-20 : PAUL MUHABE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

“1. Ad Conviction

2. Ad Sentence

As regards sentence, given the value of the prejudice in this matter being $940, and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess.

We are aware, that, the appellant is a repeat offender; but, that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service.

The appellant's legal practitioner indicated, during the hearing, that, the appellant had already served three months imprisonment.

That would cover the 2 months imprisonment which was brought into effect on the day of his sentence.

The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment.

The appeal against sentence succeeds:

Accordingly, the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:

“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940 through the Clerk of Court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused's defence counsel and the State.”

The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.

HMT18-20 : IRIMAI GOCHE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 11 October 2019, the appellant was convicted of contravening section 53(2) of the Road Traffic Act [Chapter 13:11] for reckless driving and was sentenced to 2 years imprisonment; in addition, he was prohibited from driving commuter omnibuses or heavy vehicles for the rest of his life in terms of section 54(4)(a)(b) of the Road Traffic Act; further, the appellant's licence was cancelled.

The appellant noted an appeal against both conviction and sentence.

The State does not oppose the appeal in terms of section 35 of the High Court Act [Chapter 7:06], more particularly, on the aspect of conviction.

Having read the arguments presented before us by both counsel, we have the view, that, the concession by the State, as against conviction, was properly made and the conviction of the appellant for contravening section 53(2) of the Road Traffic Act [Chapter 13:11] is set aside and substituted by a conviction for contravening section 52(2) of the Road Traffic Act, that is, for dangerous driving.

As regards sentence, the conviction of reckless driving has been set aside, this court is at large to interfere with the sentence of 2 years imprisonment.

The Road Traffic Act provides an option of a fine of level 10 or for imprisonment of 1 year or to both.

The manner the appellant drove on the day in question exposed both passengers and human traffic to serious danger; it is fortunate that no one died on the day in question.

The conviction of the appellant for dangerous driving is equally serious; and, it is my considered view, that, a fine will meet the justice of the case when cumulatively taken with the imminent prohibition.

In the result, the following order is returned:

(a) Both appeals against conviction and sentence are upheld.

(b) Accused is found guilty for contravening section 52(2) of the Road Traffic Act [Chapter 13:11]; dangerous driving.

(c) RTGS 6,000, or, in default of payment, 5 months imprisonment.

(d) Accused is prohibited from driving class 1 and 2 motor vehicles for a period of 2 years.

HMT22-20 : PHILLIP MUCHEDZI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 18 October 2019, the appellant was convicted for stock theft as defined in section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and was sentenced to 9 years imprisonment.He appealed against conviction and set out the grounds as follows -“GROUNDS OF APPEAL1. The trial court erred ...

On 18 October 2019, the appellant was convicted for stock theft as defined in section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and was sentenced to 9 years imprisonment.

He appealed against conviction and set out the grounds as follows -

“GROUNDS OF APPEAL

1. The trial court erred by placing a duty on the appellant to prove his innocence by sufficing that the circumstantial evidence before the court proved the appellant guilty beyond a reasonable doubt thereby convicting the appellant.

2. The trial court erred in concluding, that, the totality of the evidence could ensure a conviction without hearing evidence from a material State witness, Zvikomborero Ndedzo.

3. The trial court erred in convicting the appellant whilst the identity of the perpetrators had not been established by the State witnesses who bought the carcass.

4. The trial court erred in linking the pliers found at the crime to the appellant when there was no evidence that the appellant was ever in possession or in control of the pliers at the material time or at any time.

5. The trial court erred by pacing value on hearsay evidence from one Antonio Mutoniya that the appellant was communicating with Zvikomborero Ndedzo. No evidence was led to show, that, indeed, the appellant was communicating with Ndedzo or the nature of such communication, if it existed.

6. The trial court misdirected itself in concluding, that, the witness, Antonio Mutoniya, made a police report and thus concluding that he was a credible State witness when in fact he never gave evidence that he made the police report.

7. The trial court erred by failing to treat the evidence of Anonio Mutoniya with caution as he was a potential accomplice taking into account that he had not had the beast cleared by the police, he bought the meat at night, and that he had no record of the persons who sold the meat to him.

8. The trial court erred by dismissing the appellant's alibi even though the State had not managed to disprove or refute it.

9. The trial court erred by failing to give due weight to the fact, that, indications by the police were forced, biased, and also full of fabrications and that they were also allegedly made after the police had visited the scene and that it is at variance with the complainant's evidence.”

The appellant prayed that the conviction and sentence imposed by the court a quo be set aside and that he be found not guilty and acquitted.

FACTS

The State alleged, that, on 27 April 2019, and at Plot No.84, St Faith, Rusape, Malven Muchedzi and the appellant, both and each or one or the other of them unlawfully took a black cow owned by Tafara Chitsike intending to deprive him permanently.

On the same date, the appellant contacted Zvikomborero Ndedzo on his mobile phone informing him that he was selling a cow which had suffered a broken leg.

Zvikomborero Ndedzo advised Peter Antonio Mutoniya, through his mobile phone, who agreed to buy the cow.

On the same day, at around 2000 hours, the appellant and his accomplice proceeded to the complainant's cattle pen where the appellant's co-accused opened the kraal, entered, and drove out a black cow whilst the appellant remained at the entrance.

The appellant then closed the kraal and the two then drove the cow to Mutseriwa's farm.

Upon arrival at the farm, the appellant's co-accused cut a barbed wire which surrounds the farm with a pair of pliers to gain entry into the farm. The two tied the cow to a tree and slaughtered it, skinned it, and hid the hide between some rocks and carried the meat to a roadside - leaving the pliers at the scene.

Zvikomborero Ndedzo and Peter Antonio Mutoniya later arrived at the scene and met the two accused.

The appellant and his co-accused charged $700 for the meat and loaded it into the motor vehicle; they were paid $400 on 28 April 2019. Peter Antonio Mutoniya deposited $60 into the appellant's ecocash account.

On 28 April 2019, in the morning, the complainant discovered that his cow was missing. He followed spoor which led him to the scene and recovered a plier. He later met Ananias Muchedzi who identified the pliers as belonging to him.

The total value is $500.

The appellant, in his Defence Outline, denied stealing the complainant's cow. On 28 April 2019 he was never near the complainant's kraal, and was actually in Harare buying paprika.

He denied knowing Peter Antonio Mutoniya and the $60 he was paid through ecocash, from Zvikomborero Ndedzo, was a payment for his debt; the extra $10 was for charges and a pint of beer for gratis.

It is important to summarise the evidence that was relied on by the trial court to convict the appellant.

The complainant, Tafara Chitsike's vital evidence is to the effect, that, when he discovered that his cow was missing from the kraal, he detected a spoor composed of human feet trail and hooves from his kraal; he got to where the fencing wire had been cut and discovered the hide; he also picked the pliers. His neighbours came, including Ananias Muchedzi, who identified the pliers as belonging to him.

Ananias Muchedzi is the appellant's father. He had been missing the pliers.

Before the complainant proceeded to the police, Liberty arrived at the complainant's homestead saying he could not find his axe. Ananias Muchedzi informed the complainant that he suspected Malven and the appellant over the complainant's missing black beast.

The complainant told the court a quo that the appellant admitted, at the police, stealing the complainant's cow and also promised the complainant that he could give him the money he received from the buyer.

The complainant, under cross-examination, added, that, when the appellant was at the complainant's home, he told the complainant's wife how they have stolen the cow. Both the appellant and Malven asked for forgiveness.

Peter Antonio Mutoniya's critical evidence is to the effect, that, he did not know the appellant, but, on the date in question, when he was with Zvikomborero Ndedzo, where he loaded the meat, the appellant and Malvern Muchedzi's names were identified as the owners of the meat.

He paid a down payment of $400 and retained $300 to enable him to get an invoice from the owner of the meat.

He deposited $60 through ecocash, through the appellant's mobile phone, as part payment of the balance of $300.

He was then told that the appellant and Malven were wanted by the police.

The police detail, Jephter Zivedza, told the trial court, that, at first, the appellant denied the theft, but, later, admitted and promised the complainant that he will restitute him.

He also told the court, that, it was the appellant who led police to where the hide was concealed.

During cross examination by defence counsel, the police detail reiterated, that, at first, both the appellant and Malven admitted stealing the cow and vowed to the complainant that they will compensate him.

The grounds of appeal are long, repetitive, and meandering; what we perceive at the centre of the appeal against conviction is that the court a quo should not have convicted the appellant.

The appellant submitted, that, he had a defence of an alibi and stated, that, on the day in question, he had sojourned to Harare to buy paprika and returned around 9:00pm.

During hearing of the appeal, the appellant's counsel admitted, that, the appellant raised the alibi defence belatedly on the day of trial and during cross-examination of the appellant.

The Defence Outline also shows, that, the appellant did not raise it specifically though he alluded to the paprika business.

A defence of an alibi must be raised by an accused right from the outset.

At the time an accused is informed of his or her own charges, he or she should immediately inform the police about his or her whereabouts at the time the alleged crime was committed.

This information would assist the police to verify the alibi through interviewing witnesses.

Invariably, if the alibi is confirmed, police will not logically insist with prosecuting the accused; and the accused must not wait for the day in court and mischievously introduce the defence.

The court may require the accused to call the witnesses to confirm such an alibi. It will not be shifting an onus, it will be expecting an accused to authenticate his side of the story, moreso where the State would have proved evidence which places the accused at the scene of the crime.

The appellant, in this case, did not tell the police about the alibi - he eluded to it during trial. The court a quo did not err nor misdirect itself in dismissing the appellant's alibi.

The evidence of the pliers, the mentioning of the names to the buyer of the meat, the indications and recovery of the hide, the promise to pay compensation to the complainant, the payment of $60 ecocash to the appellant, cumulatively puts credence to the inference reached by the court a quo.

A close trail of the events, deduced from the evidence led by the State, established, that, the appellant and his accomplice stole the plier and collected an axe, used the implements in clearing the fence and slaughtering the beast. They sold the meat to Antonio Mutoniya who paid $400, and, later on, paid $60 to the appellant for transport to go and collect the balance leaving an invoice to the buyer.

The evaluation of the evidence by the court, in its judgement, calls for no interference; its well-reasoned and the criticism by the appellant is unfounded and has no merit.

The appellant failed to prove allegations of compulsion where he made indications as well admitting to the complainant that he stole the cow.

All the nine supposed grounds of appeal have no merit and the appeal against conviction is dismissed.

HMT25-19 : CHARLES CHIROZVI and NICKSON MAREYA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

Charles Chirozvi and Nickson Mareya were jointly charged with Tinashe Chinhango before the Provincial Magistrate sitting at Mutare facing robbery as defined in section 126(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It was alleged, that, on 29 November 2018, at Chikanga 2 Mutare, near Sports Field, the accused took property, that is, a G-tel A728xP2 model cell phone and cash $2 from Bokang Mukwena by forcefully pushing him to the ground and hitting him with a stone on the forehead and kicking him on the ribs several times intending to induce Bokang Mukwena to relinquish his property and also to prevent him from recovering his property immediately after taking.

After trial, they were all convicted and each was sentenced to 5 years imprisonment of which one year imprisonment was suspended for 5 years on the usual conditions of good behaviour.

Charles Chirozvi and Nickson Mareya, who were accused 1 and 3 respectively in the court a quo, and first and second appellant in this court, noted an appeal against the whole judgment on 8 January 2019. They spelt out the grounds of appeal as follows:

AD CONVICTION

1. The learned Provincial Magistrate erred in convicting the two appellants on the basis of circumstantial evidence in circumstances where it was not clear that the only reasonable inference to be drawn was that all three had participated in the alleged robbery.

2. The learned Provincial Magistrate erred in refusing to accept the two appellants explanations.

3. The court misdirected itself at law and on the facts in its analysis of the evidence and the fact that the first appellant accompanied the second accused, Tinashe Chinhango, on the first occasion does not indicate that he participated in the robbery but is equally consistent with his explanation that he was only accompanying and assisting the said Tinashe Chinhango.

4. The court failed to appreciate, that, in respect of the second appellant, there was in fact very little evidence adduced by the State linking him to the offence and it was a misdirection to place heavy reliance on the alleged implication by the first appellant and he in fact should have been discharged at the close of the State case.

5. In all the circumstances, the State failed to prove its case against the two appellants as there is no direct evidence linking them to the commission of the offence and they should have been given the benefit of doubt.

As against sentence, the appellants spelt their grounds as follows:

1. In view of the relatively small amount, and the fact that there was virtual full recovery of the property, the sentence imposed is so manifestly severe so as to induce a sense of shock and outrage.

2. The learned trial magistrate paid lip service to the appellants clear records and overally placed too much emphasis on the prevalence of the offence resulting in a sentence out of sync with sentences of similar cases.

3. Even if a custodial sentence is warranted, its length is shocking and the principle of incarceration can be equally served by a short and sharp term of imprisonment.

The appeal is opposed.

The facts are as follows:

The first appellant is employed as a soldier and based at Herbert Chitepo Barracks, where he resides. The second appellant resides in Chikanga, Mutare; he is not employed.

The complainant is Bokang Mukwena; he is a policeman based at ZRP Mutare Central.

On 29 November 2018, at around 2200 hours, the complainant was coming from Legends Night Club going to his house and was followed by the accused persons who attacked him just a few hundred metres from Legends Night Club near Sports Field in Chikanga 2.

They assaulted him with a stone on the forehead, and kicked him several times on the ribs.

The complainant then pleaded with the accused persons to spare his life as they were threatening to kill him.

There were four accused.

The accused persons then took the complainant's G-Tel A728xP2 cell phone and cash $2 bond and two (2) quarts of beer and they went away leaving the complainant lying helpless on the ground.

Moments later, the complainant regained strength and went and made a report at Chikanga Police Station.

He sustained bleeding on the forehead and also complained of painful ribs and he was referred to Mutare General Hospital for medication and a medical affidavit was compiled.

On 4 December 2018, the complainant approached Artwell Mapinga, after receiving a tip from his informant that Artwell was in possession of the stolen cell-phone. Artwell led the complainant to the appellants from whom he purchased the cellphone.

The appellants, and the second accused in the lower court, were arrested.

The value stolen was $252 and that recovered is $250; that means, the complainant did not recover the $2 bond.

In the first appellant's Defence Outline, he pointed out, that, on 29 November 2018, he was at work, thereby raising a defence of alibi. He told the court that he knew nothing about the offence.

The second appellant equally raised an identical defence of alibi and told the court, that, on 29 November 2018, at around 22:00 hours, he was in Mutare town not at Chikanga; he also told the court that he knew nothing about the offence that allegedly occurred in Chikanga.

WHETHER THE COURT A QUO ERRED IN CONVICTING THE APPELLANTS ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE

The appellant's counsel submitted, that, the whole case was based on circumstantial evidence, as correctly pointed out by the trial court, as there was no evidence directly linking the two appellants to the robbery.

However, the appellants further argued, that, the evidence presented by the State fell short on proving the participation of the appellants in the robbery of the complainant.

The evidence adduced by the State did not rule out that the second accused in the proceedings a quo honestly picked the subject cell phone, or that the cellphone could have been dropped by one of the robbers, or, thirdly, that, by the time the complainant was robbed, he had lost the cell phone in the bar.

Tinashe Chinhango's unchallenged evidence was that he was alone in the club when he picked the phone from the floor and none of the two appellants was present.

The State, on the other hand, submitted, that, the first appellant claimed ownership of the cell phone and sold it to Artwell Mapinga for $150 and also proffered proof of ownership.

The State added, that, the first appellant possessed the stolen cell phone immediately after commission of the robbery.

The State went on to submit the first and second appellants conduct, post robbery, showed that they knew that the property had been stolen and that they were participating in its disposal and relied on the doctrine of recent possession of stolen property.

The conduct by the appellants, the State concluded, during transactions with Artwell Maponga, can only be the appellants were the robbers and that was enough to have them convicted.

When a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

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

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

(c) 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

(d) The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation by 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 Jekiseni HB106-08; S v Muyanga HH79-13; Esther Manyengavana v S SC83-88.

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

All 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 correct.

The complainant told the trial court, that, he could not identify the robbers; he only knew the appellants through Tinashe Chinhango; and, Chinhango's name was introduced to the complainant through Artwell Maponga, the buyer.

Tinashe Chinhango, right from the start, maintained his defence, which was uncontroverted by the State, that, he picked the cell phone on the floor of a bar.

The State did not reject that version by Tinashe Chinhango as possibly untrue.

The State did not apply for a separation of trial, and, besides relying on the doctrine of recent possession, there was no other evidence linking the appellants to the robbery.

The appellants raised defences of an alibi which was not probed by the State. Hence, there are wide possibilities in the appellants favour.

It is possible that first appellant was at work at 22:00 hours on the date of robbery. It is possible that the appellants participated in the selling of the cell phone ignorant of the fact that the cell phone was a subject of robbery; that the appellants wanted to recover the balance of the purchase price from Artwell Maponga purely out of greed or to recover an outstanding debt due to either of them from Tinashe Chinhango or even to steal from Chinhango.

These are not remote or improbable possibilities.

It is also possible, that, the complainant lost the cell phone well before the robbery or that one of the robbers dropped the cell-phone in a bar fearing to be tracked by the police.

The trial court did not rule these possibilities remote, improbable, far-fetched, and incongruous in the light of the rest of the circumstances.

I tend to agree with submissions on behalf of the appellants, that, the court a quo indeed erred in concluding that the participation of the appellants in the selling and tracing of the balance of the purchase price was to infer that the appellants were guilty of the offence of robbery of the complainant.

It was not the only reasonable inference to be deducted from the circumstances.

The matters of S v Kawadza 2005 (2) ZLR 321 (H), cited by the State, on the doctrine of recent possession and authorities cited therein are relevant, but, the inference deducted by the trial court from the proven facts should be primary; the issue of possession becomes secondary to cement the inference established by a trier of fact.

Where an accused cannot give an innocent explanation of the possession, yes, the inference that he stole the property would be and can be drawn as the only reasonable inference that can be drawn from such possession.

If the only inference that can be drawn from the totality of the evidence is that he stole the goods, then, he can be convicted of the robbery of those goods: S v Kawadza 2005 (2) ZLR 321 (H).

The State failed to prove that in this case.

WHETHER OR NOT THE STATE MANAGED TO DISPROVE THE APPELLANTS DEFENCE OF ALIBI

The State, in its papers, correctly admitted, that, it did not pursue the defence of alibi raised by the appellants.

The record of proceedings correctly points out, that, there is no evidence that an attempt was made to prove whether the first appellant was at his work place or not and whether the second appellant was in town at 2200 hours.

No investigations were carried out, and this, the State did not dispute.

“Whether a person identified (or implicated) claims he was elsewhere at the time of the crime, the police should check his alibi as the onus will be on the State to disprove his alibi. The court should not dismiss an alibi on the basis of comparative credibility of the complainant and the accused.”

See S v Musakwa 1995 (1) ZLR 1 (S) per McNALLY JA.

WHETHER ROBBERY WAS THE ONLY REASONABLE INFERENCE FROM THE PROVEN FACTS IN LIGHT OF THE CIRCUMSTANTIAL EVIDENCE PROFERRED IN COURT

When the court examined critically this ground of appeal, it appeared that it was the side of a coin of ground number one outlined in the grounds of appeal; the analysis would inevitably lead to conclusions already made by the court in analysing the first.

The State also made references to the same conclusion.

The effect sought to be attained by the appellants will dispense dealing with this ground. I will however consolidate my decisions on ground one with this for this ground of appeal and uphold all the three grounds of appeal as against conviction....,.

Accordingly, the following order is granted:

1. The appeal against conviction is upheld.

2. The decision of the court a quo is set aside in its entirety and substituted by the following:

Accused 1 and 3 are found not guilty and acquitted.

HMT25-19 : CHARLES CHIROZVI and NICKSON MAREYA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

AD CONVICTION

AS AGAINST SENTENCE

There are submissions made by both parties as regards sentence. I do not see any merits on the aspect of sentence advanced by the appellants.

Where an accused is convicted of robbery, a sentence in the region of 6 years, with a portion suspended on conditions applicable, would be appropriate: see S v Madondo 1989 (1) ZLR 302 (H).

I would have dismissed the appeal against sentence had the court upheld the conviction, but, in the light of upholding the appeal on conviction, the ruling on the aspect of sentence becomes academic.

HMT28-20 : CRISPEN CHIGUMA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellant was convicted for rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged, that, on 29 January 2019, and at House Number 2172 Messenger's Camp, Nyanga, the appellant unlawfully had sexual intercourse with Vincencia Mundida without her consent or realizing that there was a real risk or possibility that Vincencia Mundida might not have consented to it.

He was sentenced to 14 years imprisonment of which 4 years imprisonment was suspended for 5 years on the usual condition of future good behaviour.

The appellant noted an appeal on 15 October 2019 and outlined grounds of appeal against conviction as follows:

“Ad Conviction

1. The court a quo grossly misdirected itself at law by convicting the appellant in circumstances where Appellant's guilt had not been proved beyond reasonable doubt given Appellant's defence that the sexual intercourse was by consent.

2. The court a quo grossly misdirected itself at law by convicting the Appellant of rape in circumstances where the report was not made freely and voluntarily.”

Background

The appellant was aged 33 years and employed as a soldier stationed at All Arms Battle School, Nyanga. The complainant was aged 30 years and the appellant was her ex-husband, although the marriage was not registered.

During the time they were still together, the appellant borrowed US$470, of which he made part payment back, leaving a balance of US$270. On 26 January 2019, the appellant invited the complainant to his house so that she could collect her money. On 28 January 2019, the complainant proceeded to the appellant's house and found the appellant out. She waited for his return.

The appellant later on that day arrived home at around 23:00hrs and he invited the complainant into his bedroom to collect the balance outstanding to her.

Whilst in the bedroom, the appellant attempted to fondle the complainant's breast, but, the complainant told him that she did not like that. The appellant did not relent; he forcibly made the complainant to lie on the bed on her back. The complainant tried to scream for aid but the appellant closed the complainant's mouth using his palm and went on to press her down. The appellant overpowered the complainant and pulled her dress up, tore her pant, and forcibly had sexual intercourse with her once without her consent.

After the rape, the complainant and the appellant slept on the same bed overnight.

On 29 January 2019, that is, the following morning, the complainant reported the matter to ZRP Nyanga Police leading to the appellant's arrest.

In his Defence Outline, the appellant's version is that on the fateful day when the complainant arrived at the appellant's house, from Harare, the two proceeded to the appellant's bedroom. The complainant initiated and agreed to have sexual intercourse; however, before the intercourse, the complainant bathed her private parts. After the sexual intercourse, they both retired on the same bed, sharing the same blankets.

The appellant denied forcing himself upon the complainant; according to the appellant, the complainant participated in the sexual intercourse, holding the appellant's body tightly.

The appellant was surprised to hear rape allegations.

The question for determination by the court is whether the sexual intercourse between the parties was consensual. Secondly, whether the complainant did not freely and voluntarily report the matter?

It is necessary to look at the evidence of the complainant.

On 29 January 2019, the complainant does not deny going into the appellant's bedroom, but, did so upon the invitation of the appellant who had invited her there to collect the balance.

The complainant told the appellant that she intended to board the 12 midnight bus for Harare but the appellant dissuaded her.

The appellant tried to fondle the complainant's breasts and she protested. The appellant proposed to use condoms but the complainant told the appellant, that, condoms or no condoms she was not interested in the sexual adventure with the appellant.

The appellant got up from the bed, procured a condom from the wardrobe and returned to where the complainant was seated – still, the complainant clearly told the appellant that she did not want.

The appellant locked the bedroom.

When the complainant was about to get up, the appellant pushed her onto the bed; she fell on her back, and the appellant got onto her top. She screamed, the appellant gagged her, pressed the right leg, got between her legs, took a pillow and placed it between the complainant and himself and then tore the complainant's pant on the left side and raped her: see pages 34-38 of the record of proceedings.

All this was uncontroverted evidence, and, the court a quo held the complainant a credible witness.

On the following morning, she managed to escape from the appellant's house when he visited the toilet. She texted the appellant's young brother on his mobile phone; she also informed the appellant's younger brother's wife. She made a further report to her elder sister and her husband and then went to the police.

At the police, she intimated that she initially did not want to report the matter but she had resolved to do so. She also admitted that aspect on the date of trial but insisted that she did not consent to the sexual act.

The appellant submitted, that, the complainant was advised by the police that she will not be assisted unless she has made a police report.

Would one then say that report was not freely and voluntarily made?

On her way to the police station to make a report about the rape, she told four different people; her sister and husband, the appellant's brother and his wife informing them about the abuse. Those were the first complaints consistent with the absence of consensual intercourse.

Why would the complainant sneak out of the appellant's house to go and lodge a complaint of rape?

From the evidence of the complainant, whilst in the bedroom of the appellant it was apparent that she was not co-operating with the appellant's desire to have sex with her. She did so both through body conduct and verbally.

The appellant ought to have realized that the complainant was not willing to engage with the appellant in the sexual act.

We are satisfied, that, the sexual complaints were freely and voluntarily made. It was made without undue delay and made to close contacts to the complainant and the accused.

The complainant's evidence of what transpired is clear.

Previous concession when the appellant had an affair with her cannot be said to have been given for future uncontemplated violation. The complainant, on the day in question, did not consent to sexual intercourse.

The court a quo dealt with the aspect of the complainant's credibility exhaustively, and, we see no legal basis to interfere with her findings on the aspect of credibility. The conviction is proper, in our view, and the appeal against conviction has no merit.

The appeal is dismissed.

HMT36-20 : NASHMENTO KATAWARA vs STATE
Ruled By: MWAYERA J and MUZENDA J

This is an appeal filed by the appellant against both conviction and sentence reached and passed by the magistrate sitting at Mutare on the 8th of January 2020 where the appellant was convicted for a charge of un-authorised borrowing or use of property as defined in section 116 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and was sentenced to 14 months imprisonment of which 5 months imprisonment was suspended for 5 years on the usual conditions, 3 months imprisonment was further suspended on conditions the appellant pays a fine of $1,000 and the remaining 6 months were further suspended on condition of restitution.

The appellant's grounds of appeal are as follows:

“1. AS AGAINST CONVICTION

1.1 The Learned Magistrate erred by convicting appellant of the offense of unauthorised borrowing when such an offense was not proved against him beyond reasonable doubt.

1.2 The Learned Magistrate erred by convicting appellant on the evidence of the complainant which was not clear and satisfactory on every material respect and was thoroughly discredited during her cross examination and the entire court proceedings.

1.3 The Learned Magistrate erred in rejecting appellant's defence of authorisation which was reasonably true and probable and was not proved to be palpably false.

1.4 The Learned Magistrate erred in suggesting, that, the appellant ought to have proven his own defence or call witness to corroborate his defence when clearly the law did not put such an onus on the appellant.

2. AGAINST SENTENCE

2.1 The fine imposed by the Learned magistrate was manifestly excessive and induces a clear deep sense of shock considering the circumstances of the offence and that of the appellant which were highly mitigatory.

2.2 The Learned Magistrate erred in her assessment of the sentence when she over-emphasized issues of aggravation turning a blind eye on the otherwise compelling mitigatory factors in favour of the appellant.

2.3 The Learned magistrate erred in imposing excessive restitution on appellant and thereby failing to take into account the type of the motor vehicle and its value and also that the complainant's vehicle is still there and was not damaged beyond repair.”

BACKGROUND

The complainant and the appellant used to be friends. On the 21st of October 2018, the complainant went to the United Kingdom and asked the appellant to drive her Honda Fit motor vehicle from Harare to Mutare and directed the appellant to go and park the vehicle at her house in Murambi, Mutare.

The appellant complied as per the complainant's instruction and he handed over the car keys to one Bobo Moyana, a security guard at the complainant's place of residence.

On the 27th day of October 2018, the appellant went to the complainant's residence and took the Honda Fit from Bobo Moyana, without the complainant's consent, and drove away.

Sometime in November 2018, whilst the complainant was still in the United Kingdom, she received information, from her sister, to the effect, that, her vehicle was involved in a road traffic accident at Rutenga.

On the 11th of March 2019, the complainant returned to Zimbabwe and reported the case to the police.

The value of the stolen property is given by the State as US$5,500. The appellant was charged for theft as defined in section 113(1)(a) of the Criminal Law (Codification and Reform) Act (the Criminal Code); alternatively, the State charged the appellant with un-authorised borrowing or use of the property as defined in section 116 of the Criminal Code.

The appellant pleaded not guilty to the main and alternative charge. He was found guilty to the alternative charge.

He now notes an appeal against both conviction and sentence.

As against conviction, the appellant submitted, that, the complainant's evidence as well as the other State witnesses evidence was glaringly inconsistent. The totality of the State's evidence did not prove, that, the appellant did not have authority to use the complainant's motor vehicle.

The appellant further contends, that, the complainant had previously granted him authority to administer her taxis - which included the car in question.

The appellant also pointed out, that, the evidence of Bobo and Tawona conflicted with that of the complainant.

The appellant went on to submit, that, the complainant's evidence was gravely discredited during cross-examination, and, as a result, it was no longer worthy to be relied upon.

The appellant added, that, the court a quo displayed a complete bias towards the complainant's version.

A lot of criticism was placed on the evidence of the State witnesses, and the appellant urges this court to believe the appellant's version, because the complainant's was an afterthought.

At the centre of the appellant's submission is that he was authorised to use the vehicle in question, especially at the particular time he was instructed to manage the complainant's fleet of taxis.

The appellant submitted, that, on the day in question, he was given the car keys by Bobo Moyana.

Given the foregoing, the court a quo misdirected itself in placing onus on the appellant to prove his own defence or call witnesses to corroborate his defence.

The question for this court to decide is: whether the appellant was authorised by the complainant, on 27 October 2018, to drive Honda Fit registration number AEW 7016.

Bobo Moyana told the court, that, though he gave the appellant the keys, he assumed that the appellant has been granted permission.

That evidence was controverted by the appellant.

The complainant was consistent throughout, that, she did not authorise the appellant to drive her car on 27 October 2018.

On that aspect, she never prevaricated nor stammered.

The defence of the appellant, of an assumed previous authorization, is totally misplaced to the facts of the matter.

The court a quo had the opportunity to assess the demeanour of the complainant during trial and it accepted her version.

I fail to see any misdirection or erring on the part of the trial on that aspect.

When the court a quo remarked, that, the appellant had a duty to prove his defence, it does not amount to shifting of onus at all, the court is simply stating, that, the version of the appellant required clarification or explanation that is supported by other evidence other than the sole side of the appellant.

The onus still lies on the State.

However, more credence is added to the fort of the accused's defence if more supportive evidence is added to the recipe, and, such evidence would assist the trial court to reach at a fair decision whether for or against the accused.

The apparent and undisputed truth, proved by the State, was that, on 27 October 2018, the appellant did not get authority to drive the complaint's car; the authority ought to have come explicitly from the complainant in no uncertain terms - not from Bobo Moyana nor any other agent.

The appellant should not have just assumed, that, because he had previously been granted permission, then, it would follow whether the complainant be there or not he would drive her car; the appellant would be found guilty of un-authorised use or borrowing.

The appeal against conviction has no merit and it ought to be dismissed.

HMT36-20 : NASHMENTO KATAWARA vs STATE
Ruled By: MWAYERA J and MUZENDA J

“1. AS AGAINST CONVICTION

2. AGAINST SENTENCE

As regards sentence, the appellant strongly contended, that, the learned magistrate over-emphasised aggravating issues and paid lip service to the highly mitigatory factors. He submitted, that, the court a quo ought to have exercised leniency.

The appellant went on to submit, that, the restitution imposed by the court a quo was too excessive given the model of the motor vehicle in question. He added that the damaged vehicle is still there and repairs can be effected to it; the value imposed by the court is allegedly that of a new Honda Fit.

On this note, the appellant urged this court to remit the case to the court a quo for a proper assessment.

A close analysis of the reasons for sentence by the court a quo reflects, that, the court factored in the submissions by counsel of the accused's circumstances. The appellant's counsel, in mitigation before the court a quo, submitted that the motor vehicle was a write-off and urged the court to order restitution.

When such a submission is made by a legal practitioner, in mitigation, there are two possibilities:

(i) Either, the legal practitioner is urging the trial court to order restitution in the form of the value of the property amplified in the State Outline, which, in this case, is US$5,500; or

(ii) Assist the court by proposing value for the repair of damages.

The appellant's legal practitioner left the trial court with no choice.

The value for the loss of the complainant was US$5,500 and this value was not contested by the appellant during trial.

This court is bound by the corners of the record of proceedings in appeal matters.

I see no misdirection on the part of the trial court which would justify interference in its penultimate sentence.

The appellant had a duty to put before the court a quo the reasonable amount of damages for this “write-off” car and proceed to convince the trial court, during mitigation, as regards restitution.

He did not.

There is nothing peculiar for the appellant to pay restitution of US$5,500 in RTGS currency pegged against the legalised Bank rate of the US$ to RTGS.

The sentence passed by the court a quo, in our view, does not induce a sense of shock at all.

SC44-23 : PETER NYATHI vs THE STATE
Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court (court a quo) sitting at Bulawayo which convicted the appellant of murder in contravention of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23] (the Code).

Subsequent to the conviction, the appellant was sentenced to death.

This is an automatic appeal against both the conviction and sentence in terms of section 44(2)(c) of the High Court Act [Chapter 7:06].

At the close of submissions, we dismissed the appeal and indicated that our reasons would be availed in due course. I set out hereunder the reasons for this order.

BACKGROUND FACTS

On 22 October 2018, the deceased, Sheila Moyo, along with two other women, Lily and Laiza Gumede, left their homes to fetch some firewood in the Esiphaziphazi Mountains. At about 17:00 hours, the three women started heading back towards their homes. When they were about two kilometres away from their homes, they stopped to rest as they were carrying firewood which was heavy.

It was at that time that they first encountered the appellant who passed them going in the opposite direction towards the Esiphaziphazi Mountains.

After a short break, the trio proceeded with their journey back home. After another short distance, they again stopped and took a short rest.

As they were resting the appellant passed them again and this time he was now walking in the same direction as the three women, that is, going towards Cowdray Park Suburb, Bulawayo.

Inexplicably, the appellant again re-appeared a short time later and this time he was going towards Esiphaziphazi Mountains.

Once the women had resumed their journey, the accused again re-appeared.

This time, he forcefully grabbed Lily Gumede by the neck from the back. When the deceased valiantly intervened in order to assist Lily Gumede, the appellant turned his attention towards her and tried to attack her. She ran away going towards the Esiphaziphazi Mountains. The appellant gave chase, caught up with her, and assaulted her with a log on the back of her head. The deceased fell down as a result of the heavy blow. She was then dragged by the heels into a maize field as the appellant continued to assault her until she lost consciousness.

It is alleged, that, once in the maize field, the accused proceeded to rape the deceased and thereafter fled the scene and hid at a nearby hill.

In the meantime, Lily and Laiza Gumede ran towards the nearby houses for help and one, Labion Moyo, then accompanied them back to where the deceased was.

They found the deceased bleeding from both her nose and mouth and unconscious. Her face was swollen and there were drag marks leading from the path to the maize field where she was found. The deceased's undergarments had been removed from her person and left next to her. The deceased was ferried to the hospital. She succumbed to the injuries from the attack on 24 October 2018 at Mpilo Hospital - a mere two days after the incident.

A post-mortem report compiled by a doctor was admitted into evidence by consent.

He found that the cause of death was intracranial haemorrhage and head injury. He also found that there were indications of physical and sexual assault as there was bruising on her vaginal wall and bruises on her face and head. He concluded that the deceased had been assaulted and raped.

On 30 October 2018, the appellant was identified at a police parade, amongst eight other male adults, by Lily Gumede, as the perpetrator of the offence. This followed a police investigation in which the appellant's girlfriend led the police to their home where his blood-stained clothes were recovered. The DNA sample found on his blood stained pair of jeans and navy blue and grey jacket proved a positive match with the deceased placing the appellant firmly at the scene.

However, her vaginal swab was not indicative of any DNA residue belonging to anyone else other than herself.

Upon the appellant's arrest, he made indications to the police detailing how he had assaulted the deceased.

Thereafter, the appellant was formally charged with murder committed in aggravating circumstances and arraigned before the court a quo.

In his Defence Outline, the appellant pleaded guilty to a lesser charge of culpable homicide. He admitted assaulting the deceased with a log once on the head. He argued that the reason for such action was that he had been provoked by the deceased who had called him a murderer.

The appellant further testified, that, it was the deceased who struck him on the neck and shoulder first before he dispossessed her of the log and hit her once on the head and she fell down losing consciousness.

He strenuously refuted the rape allegations.

He explained that he had reacted in this manner because the deceased had provoked him.

He also alleged that he was acting in self-defence as she had attacked him first.

At the trial, Laiza Gumede outlined in detail what transpired on the day in question and how the appellant attacked the deceased. She denied that he was provoked by the deceased or any one of them. She denied that any of them had called the appellant a murderer.

The second State witness, Wilbert Tichaona Tigere, is a detective in the Zimbabwe Republic Police CID Homicide Unit. He testified that he visited the scene and recovered the log that was used in the assault and the deceased's undergarments. He further testified that the appellant's blood-stained clothes had been recovered from his house. He confirmed that the appellant was taken to United Bulawayo Hospital for blood sample extraction. The blood stains on his clothes matched the blood of the deceased.

Under cross-examination, the appellant disputed the suggestion that he had raped the deceased after the assault.

When probed about who could have been responsible for the rape during the short interval that her companions fled and then returned with one Labion Moyo, he said that he did not know.

The appellant accepted that he was at the crime scene and testified, that, after the offence he hid a short distance away where he remained in observation of the deceased up to the point that her companions returned.

He, however, maintained that he did not intend to kill the deceased but only assaulted her after she had called him a murderer.

In determining the matter, the court a quo found that the post mortem report showed that excessive force had been used to assault the deceased and that the assault led to her death. It also concluded, on the evidence presented, that the deceased had been sexually abused.

It also found that the last person to see the deceased alive was the appellant and hence no other person could have possibly had a sexual encounter with her within the limited time frame following the attack.

It further reasoned that the appellant could not deny the offence due to the overwhelming evidence against him and that is why he had tendered a plea of guilty to the lesser charge of culpable homicide.

In light of those findings, the court a quo held that the respondent had succeeded in proving beyond a reasonable doubt that the accused had caused the death of the deceased with actual intent.

As regards to sentence, the court a quo took into account mitigating factors as submitted by the appellant in which he stated that he had no previous conviction. He stated that he had shown contrition by tendering a plea of guilty to culpable homicide.

Nevertheless, the court a quo concluded that the appellant's actions reflected a callous, calculative and cruel disposition. The accused had attacked a defenseless woman by striking her on the head. He thereafter ravaged her whilst she lay unconscious.

The court thus found that the aggravating factors far outweighed the mitigating ones and held that the only appropriate sentence was the death penalty.

This is an automatic appeal to this Court against both the conviction and sentence on the following grounds:

“AD CONVICTION

1. The court a quo grossly misdirected itself and erred at law in finding the Appellant guilty of murder with actual intent committed in aggravating circumstances.

2. A fortiori, the court a quo erred at law by completely disregarding the evidence of Peter Nyathi.

3. The court a quo grossly misdirected itself in law and fact by making a finding that the Appellant had raped the deceased yet there was no sufficient evidence to prove this finding.

AD SENTENCE

1. The court a quo erred in imposing the death penalty without satisfactorily addressing the alleged aggravating circumstances.

2. A fortiori, the court a quo erred and misdirected itself by paying lip service to the mitigatory circumstances.

RELIEF SOUGHT

TAKE FURTHER NOTICE THAT the Appellant seeks the following relief:

1. That the instant appeal succeeds.

2. That the judgment of the court a quo is set aside in its entirety and substituted with the following:

“(a) The Appellant is found guilty of murder with constructive intent.

(b) The Appellant is sentenced to life in prison.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, from the evidence on record, it was only proved that the appellant had assaulted the deceased and there was no intent to kill. He argued that the evidence adduced pointed to an altercation between the appellant and the deceased. He maintained that the appellant was aiming for the shoulder when he struck the back of the deceased's head.

He further submitted, that, the scientific evidence introduced a new element to the case.

He submitted, that, the scrapings under the deceased's finger nails introduced the possibility of a third party being at the scene as they did not match the appellant.

He also disputed that it was the appellant who moved the body of the deceased into the maize field.

Critically, he further submitted that the vaginal swab did not match with the appellant's fluid thereby indicating that he did not rape the deceased. He thus insisted that the DNA sample was not consistent with the allegations of rape.

Per contra, counsel for the respondent submitted, that, the conviction could not be faulted as the evidence was overwhelming and pointed to the appellant's guilt.

He invited the court to consider that the appellant accepted being at the scene and striking the deceased but merely disputes raping the deceased. He contended that after striking the deceased she lost consciousness and the only person who could have moved her was the appellant.

He further asserted, that, the inference of rape could only be made against the appellant.

Counsel for the respondent relied on the postmortem report as evidence of the rape incident together with the fact that her undergarment had been removed.

Finally, he asked the court to take into account that the appellant was the last person to have seen the deceased alive. He submitted, that, following the appellant's encounter with the deceased, when he assaulted her, he thereafter watched over her from a distance until her friends returned with help.

On sentence, he submitted that it was justified on the basis that the finding by the court that the deceased was indeed raped meant that the criteria for aggravating circumstances had been met.

WHETHER OR NOT THE CONVICTION WAS PROPER

Regarding the conviction, I am satisfied that the court a quo's determination was in accordance with both the law and established jurisprudence on murder in contravention of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

The appellant's only defence was that he erroneously struck the deceased on the head when he intended to aim for her shoulder.

It is not in dispute that he assaulted her with a heavy log when she was running away from him.

That he would have been aiming specifically for the shoulder and not the head is highly improbable in these circumstances.

At the very least, he ought to have foreseen the possibility of striking her on the head and causing her death.

The requirements for a court finding a person guilty of murder were set out in the case of Dube v The State SC83-22…, wherein the following was held:

“It is trite that there are four basic essential elements that must be proved to sustain a conviction of murder. These are:

(i) Causing death of (ii) another human being (iii) unlawfully; and (iv) intentionally.”

On the facts of this case, the requirements set out in paragraphs (i) to (iii) above are common cause. The only issue for determination relates to the intention of the appellant which is under paragraph (iv).

In S v Mugwanda 2002 (1) ZLR 574…, the late CHIDYAUSIKU CJ posited the following regarding the question of intent in a murder:

“On the basis of the above authorities, it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied, beyond a reasonable doubt, that:

(a) Either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b) While pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless.”

The evidence shows, that, the appellant attacked the deceased with a log which was 85cm long. Although the record does not disclose its weight, a log that size would have been heavy.

The post-mortem report reflects that the deceased was viciously attacked. She had a bruised swollen head and face. She also had a big, deep cut on her lip which required a suturing. The finding by the doctor was that the deceased died of intracranial haemorrhage and head injury.

The wounds to the face completely destroy the appellant's defence that he intended to strike her on the shoulder but missed.

This was a vicious attack on a defenceless woman. From the injuries outlined above there was a clear intention to cause the deceased's death.

It should also be noted, that, the appellant was clearly scouting out his victim in this case.

The record reflects that the appellant appeared before the three women no less than three times before he decided to attack them. Clearly, this was a premeditated attack.

The appellant determined the precise moment that he wanted to attack his victim.

The court a quo's determination, that the appellant's conduct met the threshold for murder with actual intent cannot be faulted.

The post-mortem report also reflects that the deceased was raped as there was bruising to the introitus and the vaginal wall. The doctor also found “copious amounts of thick seminal fluid-like substance” in her vagina reflecting that she had had sexual intercourse just before she died.

Admittedly, the evidence from the samples obtained did not implicate the appellant; however, this could have been due to a number of factors that detracted from a positive result, such as, when the samples were extracted and how they were preserved until they were taken to the laboratory for analysis.

It cannot be said that the physical examination by the doctor, as reflected in the post mortem report is extinguished by the evidence which emanated from the vaginal swab.

It is evident that the swab test did not rebut the allegation of rape but rather merely failed to provide any indication of the appellant's residue. Thus, the swab test on its own, cannot be used to rebut the allegation of rape.

The evidence in the post-mortem report left no doubt that there had been sexual interference.

It should also be borne in mind that the deceased's undergarment was removed and found at her side which was also highly suggestive of rape.

From the appellant's own evidence, it was apparent that he remained watching the deceased from a distance until the return of the rescue party. He accepted that no one else went to the scene.

Thus, it could only have been the appellant who raped the deceased.

Thus, the court a quo did not err in finding that the appellant intended to murder and rape the deceased.

Accordingly, the conviction is hereby confirmed.

WHETHER OR NOT THE SENTENCE WAS APPROPRIATE

The death penalty was imposed by the court a quo after the appellant was found to have committed murder in aggravating circumstances.

The court a quo found, that, the deceased had been raped by the appellant.

Clearly, when one has regard to the other evidence presented before the court the court a quo, it cannot be faulted for imposing the death penalty on the appellant.

It is trite that the court a quo has discretion on whether or not to impose the death penalty. The Criminal Law (Codification and Reform) Act (the Code) provides the circumstances which must be considered by a court when imposing a sentence after a conviction of murder.

Section 47(2) of the Criminal Law (Codification and Reform) Act provides:

“In determining an appropriate sentence to be imposed upon a person convicted of murder, and without limitation on any other factors or circumstances which a court may take into account, a court shall regard it as an aggravating circumstance if -

(a) The murder was committed by the accused in the course of, or in connection with, or as the result of, the commission of any one or more of the following crimes, or of any act constituting an essential element of any such crime (whether or not the accused was also charged with or convicted of such crime) -

(i) An act of insurgency, banditry, sabotage or terrorism; or

(ii) The rape or other sexual assault of the victim; or

(iii) Kidnapping or illegal detention, robbery, hijacking, piracy or escaping from lawful custody; or

(iv) Unlawful entry into a dwelling house, or malicious damage to property if the property in question was a dwelling house and the damage was effected by the use of fire or explosives.”…,.

In this case, the court a quo, in convicting the appellant with murder also found that he had raped the deceased.

As can be noted in section 47(2)(a)(ii) of the Criminal Law (Codification and Reform) Act above this is considered an aggravating factor.

Although the Constitution of Zimbabwe protects the right to life, the appellant's particular circumstances are not protected under section 48 of the Constitution.

It should be noted, that, the principles regarding sentencing established in the case of S v de Jager & Anor 1965 (2) SA 616 (A)…, are apposite. The Court held the following:

“It would not appear to be sufficiently realised, that, a court of appeal does not have a general discretion to ameliorate the sentences of the trial courts.

The matter is governed by principle.

It is the trial court which had the discretion, and, a court of appeal cannot interfere unless the discretion was not judicially exercised, that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock, that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognised, that, appellate jurisdiction to interfere with punishment is not discretionary, but, on the contrary, is very limited.”

Once the allegation of rape was proved beyond a reasonable doubt, it was correctly found that the murder was committed in aggravating circumstances.

Thus, there is absolutely no merit to the appellant's appeal against the sentence.

DISPOSITION

The appellant has failed to show that there was any misdirection in the court a quo's determination regarding his conviction for murder. The appellant has also failed to show that the court a quo erred in the exercise of its discretion in sentencing him to the penalty of death.

Indeed, before the court a quo, counsel for the appellant correctly conceded that the mitigating circumstances could not outweigh the aggravating circumstances of the case.

This Court finds no basis for interfering with the judgment of the court a quo.

It was for the above reasons that the following order was issued:

“The appeal against both conviction and sentence be and is hereby dismissed.”

Appealed SC83-22 : BARON DUBE vs THE STATE
Ruled By: GWAUNZA DCJ, CHITAKUNYE JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court sitting at Bulawayo convicting the appellant of murder in contravention of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].The appellant was sentenced to 10 years imprisonment.BACKGROUNDThe appellant was arraigned before the High Court facing ...

This is an appeal against the whole judgment of the High Court sitting at Bulawayo convicting the appellant of murder in contravention of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appellant was sentenced to 10 years imprisonment.

BACKGROUND

The appellant was arraigned before the High Court facing a charge of murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). It was alleged that on 26 September 2018, at Atlas Mine, Esigodini, the appellant shot and killed one Antony Prince Bvundura (the deceased).

The State's case was that on the day in question, at approximately 23:00hrs, the appellant armed himself with two guns; a Voere rifle, serial number P93912/249829 and a Taurus revolver, serial number QD579746. The appellant, in the company of a number of people armed with various items such as machetes, axes, shovels, and picks, drove his Toyota Land Cruiser motor vehicle to Atlas Mine where there was a gold rush.

Upon arrival at the mine, the appellant disembarked from his vehicle carrying the two guns. He had the rifle in one hand and a bottle of beer in the other, with the revolver tucked in his trousers by the waist.

He ordered the illegal artisanal miners he found on site to leave the site, claiming that the mine belonged to him.

The artisanal miners complied and moved out of the pits with their tools. The persons he had brought with him then moved into the pits vacated by the dispersing miners.

The deceased, who was one of the artisanal miners, also moved out of the pits and began making his way off.

The State's witness, Mkhulisi Sibanda, one of the artisanal miners ordered to leave, testified, that, as the artisanal miners (miners) were leaving the site, the appellant got into an argument with one Mncebisi Mguni who had been ordered by the appellant to leave the scene without his tools. Mncebisi was upset at the order to leave his tools behind and started exchanging insults with the appellant. Mncebisi was walking with one Mzingaye and the deceased.

It was alleged, that, amidst that exchange, the appellant fired one of his guns in the direction of the three men, probably with the intention of shooting Mncebisi Mguni. However, it was the deceased who was shot and killed.

The owner of Atlas Mine testified, that, both the appellant and the miners he found at the site were illegal miners he had tried to chase from the mine to no avail.

The appellant pleaded not guilty to the charge and stated that it was not his intention to cause the death of the deceased.

He stated, that, he was employed by Khalanyoni Ranch to safeguard against vandalism of infrastructure, especially the roads, from illegal artisanal miners.

On the night in question, he received information that artisanal miners were digging on a farm road in search of gold. He then drove to the scene with the intention of chasing them away.

The appellant admitted that he was armed with the two guns.

He stated, that, upon arrival at the site, he parked his vehicle facing away from the place where the gold mining was taking place. He disembarked and ordered the illegal miners to vacate but they resisted and started throwing stones and other un-identified objects at him.

Sensing danger, he backtracked towards his vehicle.

As he was backtracking, he stepped on a stone, slipped, and the revolver, which is self-cocking, fell to the ground. He abruptly picked it up, and, in the process, it accidentally discharged.

At that moment, he did not realize that a person had been shot and killed.

The appellant further stated, that, after the miners dispersed, he left the scene.

He therefore claimed, that, he lacked both the intention to discharge the firearm and the intention to kill the deceased or anyone.

He also denied being negligent in any way.

Upon the production of a post-mortem report and hearing evidence from a police forensic expert, it was common cause that the deceased died from gunshot wounds inflicted by the appellant's gun on the night in question.

He was shot on the upper left arm and on the chest resulting in the destruction of the heart.

The major issue the court a quo had to grapple with was whether the gun accidentally discharged or the appellant deliberately pulled the trigger resulting in the fatal shooting.

The consequence of either finding was to inform the determination of the appellant's guilt or otherwise upon consideration of the appropriate legal requirements for the offence charged.

The court a quo, upon an analysis of the evidence and the demeanour of those who testified, believed the State's version on the key issues in question.

It found the State's witnesses to be credible.

The key witness, Mkhulisi Sibanda, was at the scene and his evidence was that there was no resistance by the miners except for an exchange of insults between Mncebisi Mguni and the appellant.

This exchange was a result of the appellant's discriminatory order for Mncebisi to leave his tools behind whilst his fellow miners were allowed to take their tools.

This was the more probable cause of the deliberate shooting at Mncebisi Mguni and his colleagues.

On the other hand, the court a quo found the appellant's story to be unbelievable and thus false on the ground, inter alia, that the appellant gave contradictory evidence in his Defence Outline and in his evidence in chief.

The court a quo noted, that, in the Defence Outline, the appellant stated that upon ordering the miners to vacate, they attacked him. As a consequence of the attack, he backtracked towards his vehicle. In the process, he stepped on a stone, slipped, and the revolver fell onto the ground. He abruptly picked up the revolver resulting in its accidental discharge.

In his evidence in chief, on the other hand, the appellant testified that upon ordering the miners to vacate they did not resist and did not show any signs of violence. He was holding his rifle, a bottle of beer, with the revolver tucked in his trousers by the waist. He did not anticipate any violence and so he moved aside to relieve himself. It was then that he heard some noise and torches were lit. Stones were thrown at him. In a bid to avoid being hit by the stones, he retreated. As he was blinded by lights from the torches, he stumbled and fell into a pit. The firearm fell onto rubble which was stony. He immediately tried to retrieve it and it discharged in the process. He did not see where he touched it; all he noted was that the firearm discharged in that process.

The court a quo held, inter alia, that the appellant recklessly fired the revolver at the three miners, who included Mncebisi, Mzingaye, and the deceased.

In the circumstances, he must have realised that there was a real risk or possibility that his shooting at the trio might cause death. Despite this realization, the appellant proceeded to shoot in the direction of the trio who were going away. It was thus reckless of him to discharge the firearm in the direction of the deceased and his colleagues.

The appellant was therefore convicted of murder in contravention of section 47(1)(b) of the Criminal Law (Codification and Reform) Act (the Code).

Consequently, the court sentenced him to ten (10) years imprisonment.

Aggrieved by the decision of the court a quo, the appellant appealed against both conviction and sentence to this Court.

SUBMISSIONS BEFORE THIS COURT

Ad Conviction

In motivating the appeal, counsel for the appellant submitted, that, the court a quo erred at law by making findings contrary to the evidence placed before it. He submitted that the post mortem report showed that the bullet penetrated from the left yet the evidence before the court a quo was that the deceased had been shot whilst fleeing. He averred, that, if the deceased was shot whilst running away, the bullet ought to have penetrated from the back.

It was his case, that, the burden of proof required in a criminal matter is proof beyond reasonable doubt, and, as such, the State ought to have led expert evidence so as to clarify the possibility of the bullet penetrating from the left in the circumstances.

He also submitted, that, the court a quo erred in accepting the State's evidence and rejecting the appellant's evidence.

On the finding that the appellant's versions were contradictory, counsel for the appellant submitted, that, there was no contradiction at all.

The Defence Outline was skeletal whilst the evidence in chief was the fuller evidence.

He thus sought that the appeal ought to succeed.

Per contra, counsel for the respondent submitted, that, the evidence which was placed before the court a quo ought to be looked at holistically. He submitted, that, the evidence led established that the appellant was never under attack and did not fall into a pit as he was now contending in his evidence in chief.

Counsel further submitted, that, the appellant's version was proved not to be true. The court a quo did not err in convicting the appellant as it did.

Counsel also submitted, that, the court a quo made findings of fact and credibility which aspects the appellant has not alleged or shown to be in defiance of logic or inconsistent with the evidence adduced as per the record of proceedings. In fact, nothing has been advanced by the appellant to show that the findings of fact were wrong.

Regarding the issue of intention, counsel submitted that the evidence showed that whilst the appellant may have intended the shot for Mncebisi Mguni, whom he was exchanging insults with, he must have been aware of the real risk or possibility of shooting any other person, including the deceased, who was close to Mncebisi as the trio were moving away.

The appellant would have been aware of the risk or possibility of hitting the deceased but he nevertheless proceeded to discharge the revolver in the direction of the trio. In the circumstances, he intended the consequences that came as a result of his conduct.

APPLICATION OF THE LAW TO THE FACTS

Although the appeal raises several grounds of appeal, there is only one issue for determination: that is whether the court a quo erred in convicting the appellant from the evidence adduced.

Section 47(1)(b) of the Criminal Law (Codification and Reform) Act (the Code), under which the appellant was convicted, states that:

“(1) Any person who causes the death of another person -

(a)…,.

(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.”

The test for ascertaining the state of mind under paragraph (b) is provided for in section 15 of the Criminal Law (Codification and Reform) Act (the Code) as follows:

“(1) Where realisation of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components -

(a) A component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility that -

(i) His or her conduct might give rise to the relevant consequence; or

(ii) The relevant fact or circumstance existed when he or she engaged in the conduct; and

(b) A component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (a), the person whose conduct is in issue continued to engage in that conduct.”

In instances where death is not of the targeted person, section 57 of the Criminal Law (Codification and Reform) Act (the Code) provides that:

“If any person -

(a) Does or omits to do anything in relation to another person which, if it caused that other person's death, would constitute murder, infanticide, or culpable homicide; and

(b) By the conduct referred to in paragraph (a), causes the death of someone other than his or her intended victim; he or she shall be guilty of the following crimes -

(i)…,.

(ii) In respect of the person whose death he or she has actually caused -

(a) Murder or infanticide, as the case may be, if he or she realised that his or her conduct involved a real risk or possibility of causing the death of someone other than his intended victim; or

(b) Culpable homicide, if the requisites of that crime are satisfied.”

One would, therefore, not escape liability simply because they ended up killing the wrong person.

What is of importance is to ascertain if all the essential elements have been proved beyond a reasonable doubt irrespective of the identity of the victim.

It is trite that there are four basic essential elements that must be proved to sustain a conviction of murder. These are:

(i) Causing death of;
(ii) Another human being;
(iii) Unlawfully; and
(iv) Intentionally.

The first three essential elements were accepted as common cause. The appellant caused the death of the deceased and this was unlawful as there was no lawful justification for it.

The contentious issue was on whether the appellant had the requisite intention to cause the death.

It is in this respect, that, at the end of the trial, the court a quo found that the appellant was reckless, in that, despite the realisation that there was a real risk or possibility of causing death by discharging a lethal firearm in the direction of the trio (Mncebisi, the deceased, and Mzingaye) he, nevertheless, proceeded to discharge the firearm in that direction. He thus intended the resultant consequence. He is therefore guilty in terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act (the Code).

This appeal is essentially premised on that finding. The appeal mainly challenged the findings of fact made by the court a quo and the findings on credibility.

In S v Mlambo 1994 (2) ZLR 410 (S)…, GUBBAY CJ stated that:

“The assessment of the credibility of a witness is par excellence the province of the trial court and ought not to be disregarded by an Appellate Court unless satisfied that it defies reason and common sense.”

In discussing circumstances under which an Appellate Court may interfere with the findings of credibility of a witness by a lower court in Gumbura v The State SC78-14…, PATEL JA…, stated 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.”…,.

I am of the view, that, in the present case, there is no basis for interfering with the court a quo's findings on credibility of State witnesses.

The evidence on record tends to support such findings.

The court a quo believed the evidence of the State witnesses and found that the defence given by the appellant, in the court a quo, had irreconcilable contradictions and inconsistencies.

The crux of the appellant's defence was based on his version of events, that, the firearm accidentally discharged. The irreconcilable contradictions and inconsistencies regarding how the firearm discharged was thus fatal to his case.

As already noted above, the appellant's Defence Outline was to the effect, that, upon arrival at the scene and ordering the miners to vacate, they resisted by attacking him from the onset. Sensing danger, he backtracked towards his vehicle, stepped on a stone, slipped, and the firearm fell down. As he was in the process of picking up the firearm, it accidentally discharged thereby shooting and killing the deceased person.

In the evidence in chief, he testified that upon arrival he ordered the miners to vacate and there was no resistance. The situation was such that he did not anticipate any violence. He then went aside to relieve himself. It was at that juncture that he then heard some noise. Stones and other objects were now being thrown at him. He retreated towards his vehicle, and, in the process, as he was blinded by light from torches, he stumbled and fell into a pit that was knee deep. The firearm fell onto a rubble which was 'stoney'. He immediately tried to pick it up and it accidentally discharged.

The submission by counsel for the appellant, that, there are no contradictions but that the appellant gave a skeleton defence in the Defence Outline which was later developed in the evidence in chief lacks merit.

The purpose of a Defence Outline is to inform the State, and the court, about the nature of the defence that one intends to adopt as well as to define the issues between the State and the defence.

This principle was emphasized in the case of S v Hitschmann SC02-07…,.:

“The purpose of a Defence Outline is, basically, to provide an accused person with the opportunity to explain his attitude in relation to the charge he is facing, or to indicate the basis of his defence.”

See also Magodo v The State SC25-03 and section 66(6)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

In casu, the Defence Outline was clear that there was resistance from the onset upon ordering the miners to vacate. In terms of his evidence in chief, there was no resistance at the onset; resistance only arose after he had gone aside to relieve himself.

This latter version by the appellant, on the initial reaction of the miners, is consistent with the State's evidence that there was no resistance at the outset from the miners upon being ordered to vacate.

It thus corroborates the State's evidence on this aspect.

Mkhulisi Sibanda testified, that, after the appellant ordered the miners to vacate, they complied. He also stated, that, the contention only arose when Mncebisi Mguni was ordered to leave his tools in the shafts. That is when Mncebisi started arguing with the appellant in an attempt to retrieve his tools. Unable to retrieve his tools, Mncebisi began making his way off exchanging insults with the appellant.

It was the witness's testimony, that, this exchange of insults was probably what caused the appellant to shoot in Mncebisi's direction, who was in the company of the deceased and Mzingaye.

The witness testified, that, as the gunshot was fired during the exchange of unpalatable words between the appellant and Mncebisi, it was most probably intended for Mncebisi but it missed him and landed on the deceased.

Upon examining the events, the exchange of unpalatable words may indeed have been the cause for the shooting, and, since this exchange was between these two protagonists the shot could have been aimed at Mncebisi.

The court a quo cannot be faulted for accepting this witness evidence as credible.

Further, improbabilities were also noted in the appellant's evidence.

The appellant testified, that, when he arrived at the scene, he parked his vehicle with lights facing away from the direction of the miners. Such parking would not have enabled the miners to see that he was armed.

This version of events was held to be highly improbable.

It is highly unlikely that the appellant would go to the scene to assess the damage being done to the road and park the car with the lights facing away from the very damage he was there to assess.

It is therefore more believable that the lights were facing the miners as was testified to by Mkhulisi.

Further, I find merit in the court a quo's finding that the appellant parked the vehicle with lights facing the miners, because Mkhulisi was able to see that the appellant was armed with two firearms; a rifle in his hand, and a revolver tucked in his trousers by the waist.

The appellant accepted that Mkhulisi saw the firearms.

At about 23:00 hours, at night, the witness could not possibly have seen the revolver if there was no light.

It is therefore difficult to believe that the miners, armed with digging tools only would have dared attack the appellant who was visibly armed with two lethal firearms. It would have been a 'suicide mission' as the court a quo so eloquently put it.

The evidence by the appellant, that the revolver fell down when he slipped or fell into a pit, was rejected by the court a quo in preference to the State's evidence that the firearm did not drop down and the appellant did not fall at all.

It was not disputed that when given the opportunity to make indications at the scene, the appellant declined.

The indication could have helped in establishing the place where he alleged the firearm dropped to the ground and the pit he fell into as well as the stones allegedly thrown at him by the miners.

Another improbability noted from the appellant's evidence is that he could not explain how the firearm that discharged as he was picking it up from the ground would have discharged at such an angle or trajectory as to hit the deceased on the upper part of the body since the deceased was on his feet.

Equally, he could not explain how, after he fell into a pit, as per his second version, the bullet from a firearm he was picking therefrom would strike the deceased in the upper part of the body.

The failure to explain how the bullet could have hit the deceased on the upper part of the body when the appellant was picking it from the ground, or the pit, leaves the State's evidence, that the appellant deliberately fired the firearm in the direction of Mncebisi Mguni as the only plausible or credible explanation.

The conclusion, that, there was no accidental discharge cannot, in the circumstances, be faulted.

The inconsistencies and improbabilities evident from the appellant's testimony are such that his version cannot be true. As a result, the court a quo cannot be faulted for believing the respondent's version of events of what transpired on the fateful day over the appellant's version.

The conclusion, that, the appellant was reckless in firing the firearm in the direction of Mncebisi Mguni and others in his company, is sound.

The circumstances were such that he ought to have realized that there was a real risk or possibility of hitting someone and thus causing their death. Despite that realisation, he proceeded to discharge the lethal firearm towards Mncebisi Mguni and company.

I therefore find that there is nothing warranting this Court's interference with the verdict of the court a quo.

Ad Sentence

Though the appellant raised one ground of appeal against sentence, this ground was not persisted with. Counsel for the appellant submitted, that, he had difficulties in formulating any argument against the sentence imposed.

The respondent's position was that the sentence was appropriate considering the circumstances of the case.

It is trite that the issue of an appropriate sentence is within the discretion of the trial court.

An Appellate Court will not lightly interfere with the sentence of the trial court unless it is established that the discretion was not judiciously exercised; that is, the sentence is vitiated by irregularity or misdirection, or is so severe as to induce a sense of shock: see S v Mundowa 1998 (2) ZLR 392…,.

It is clear, that, nothing has been placed before this Court warranting interference with the sentence imposed by the court a quo.

DISPOSITION

The appellant lamentably failed to show, that, the court a quo erred in its assessment of the evidence placed before it and in convicting the appellant as it did. Equally, the sentence was not shown to be inappropriate in the circumstances.

The entire appeal has no merit.

Accordingly, the appeal against both conviction and sentence is hereby dismissed.

SC88-23 : TAPIWA MADYA vs THE STATE
Ruled By: GUVAVA JA, MAVANGIRA JA and BHUNU JA

This is an automatic appeal against the decision of the court a quo convicting the appellant of murder in terms of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ('the Act') and sentencing him to death.After hearing submissions from both counsel, the Court, for reasons to ...

This is an automatic appeal against the decision of the court a quo convicting the appellant of murder in terms of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ('the Act') and sentencing him to death.

After hearing submissions from both counsel, the Court, for reasons to be availed later, dismissed the appeal against both conviction and sentence. The said reasons now appear hereunder.

FACTUAL BACKGROUND

The appellant and one Taurai Tsikudzawo (also sometimes spelt as Tsikuzawo in the record of proceedings) were charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

The allegations against them were that on the 7th of December 2010, and at around 2100hrs, the appellant and his co-accused, while pretending to be customers, entered Zemba Store, a shop belonging to one Alex Jomboro (the deceased) at Kandeya Township, Mt Darwin. The deceased was behind the counter when one of the accused persons jumped over the counter and demanded cash from him.

The deceased failed to produce any money and one of the accused persons shot him.

Tazvitya Dzimbire, the deceased's security guard, escaped from the shop before the shooting happened, leaving the accused persons alone with the deceased.

One Detective Sergeant Mutyambizi, who was at Kandeya Township, heard the gun shots and rushed to the deceased's shop. He found the deceased lying in a pool of blood. The accused persons had fled. The detective also found two spent cartridge cases from a pistol. He proceeded to contact and inform the Police (ZRP) at Mt Darwin of the incident and facilitated the movement of the deceased to Mt Darwin Hospital where he was confirmed dead on arrival by Doctor Gwagwa who, on 8 December 2010, carried out a post mortem examination of the deceased's remains.

The postmortem report recorded that the examination had established that the deceased had died from a gunshot wound to the head.

A bullet was recovered from the deceased's head and was referred to CID Forensic Ballistics department for examination. The forensic examination of the bullet established that it had been fired from a CZ pistol serial number 9136T which had been stolen from one Bakaris Kostantinos Costas, the owner of a supermarket in Ruwa on 23 June 2010.

THE APPELLANT'S ARREST

Sometime during the period spanning 1 March 2011 to 3 March 2011, the appellant was arrested together with one Justin Momela, Thembinkosi Matutu, and Taurai Tsikudzawo by the ZRP Criminal Investigation Department (CID), Harare in connection with crimes of robbery and murder.

The four accused were interviewed by the CID officers and the appellant confessed to have been in possession of the CZ pistol serial number 9136T, this being the firearm with which the deceased was shot and killed.

Evidence adduced by the State was to the effect, that, on 3 March 2011, the appellant volunteered to lead police details to a place near Ruwa Rehabilitation Centre where he claimed and indicated that he had hidden the firearm that had been stolen from the owner of Ruwa Supermarket during the execution of a robbery.

The appellant failed to locate the firearm at that place and advised the police that the firearm may have been taken by Taurai Tsikudzawo who was with him when he hid it.

He thereafter led the police to Tsikudzawo's residence, which was about 20/25 to 30 metres away from his own. Tsikudzawo was arrested after which he led the police to a place where he had hidden the firearm after learning of the appellant's arrest.

The place where it was recovered was about 1.5km from their residences which, as already stated, are within 25 to 30 metres of each other.

THE APPELLANT'S DEFENCE

The appellant raised the defence of alibi, claiming that he had spent all his days, including the day of the deceased's murder, helping his brother, Marvellous Madya, who is a mechanic, repairing motor vehicles.

As to how he became implicated in this case, his explanation was that one Justin Momela brought a motor vehicle for repairs to be carried out by the appellant's brother. Justin Momela was advised that the motor vehicle required another battery. The appellant then gave Justin Momela a second-hand battery, and, in return, Justin Momela gave the appellant a mobile phone as security, pending payment for the battery.

When Justin Momela failed to pay for the battery, the appellant sold the mobile phone to one Spencer Muuya.

When Spencer Muuya was found in possession of the mobile phone, he implicated the appellant.

He further stated, significantly, and rather curiously too, that he only got to know Taurai Tsikudzawo after the latter was arrested through Justin Momela, who, as it turned out, and according to the appellant himself, is also known as Justin Tsikudzawo.

He denied having led the police to the recovery of the firearm, claiming that he was only seated in the police vehicle when the police were led by Taurai Tsikudzawo to the place where the weapon was hidden.

He further averred, that, he was arrested on the basis that he had had in his possession a phone which had been stolen during a robbery.

THE JUDGMENT OF THE COURT A QUO

The court a quo noted, that, in his Defence Outline, the appellant stated that Justin Momela is also known as Justin Tsikudzawo. The court was of the view, that, this meant that the said Justin Momela was probably related to Taurai Tsikudzawo.

The court a quo also noted, that, although the appellant stated in his Defence Outline that on the date that the offence was committed he was in Ruwa and spent the night with his brother, Marvellous Madya, the said brother was not called to testify.

In addition, the appellant was, in his oral evidence before the court, non-committal regarding his whereabouts or movements on that day, including the evening.

After analysing all the evidence adduced before it, the court a quo found:

“That, the accused (appellant) is the one who had possession of the firearm used to murder the deceased, and that he had hidden it but found it having been removed by Taurai Tsikudzawo, and that he was able to lead the police to the person who had changed the place where the weapon was hidden; the absence of any explanation as to how he came to be in possession of the firearm renders any suggestion that another person may have used the weapon to kill the deceased fanciful and speculative. The court is convinced, that, beyond reasonable doubt, the case against the accused person has been proved; namely, that he is the one who unlawfully and intentionally killed Alex Jomboro. In the result, the accused is found guilty of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].”

The appellant was thereafter sentenced to death.

THIS APPEAL

This appeal is against both conviction and sentence and the following grounds of appeal have been raised:

GROUNDS OF APPEAL

“1. The court a quo erred in finding, that, the appellant murdered the deceased as he is the one who led the police to Taurai from whom the firearm was recovered.

Such circumstantial evidence was improperly admitted as the fact sought to be proved, that, the appellant was in possession of the firearm therefore he is the one who shot the deceased was not consistent with all proven facts and there are other reasonable inferences that can be drawn particularly considering that at one time Taurai was in possession of the gun.

The court a quo ought to have established if indeed Taurai came into possession of the firearm and the date thereof against the date on which the offence was committed so as to determine if the appellant was in physical possession of the firearm on the date the offense was committed or it was Taurai Tsikudzawo who allegedly came into possession of the gun and skipped bail upon arrest.

2. The court a quo erred in dismissing the appellant's alibi on the basis that he failed to explain what he was doing around 21:00hrs on the 10th of December 2010 when the offense was committed. The appellant's explanation was concrete and the court ought to have considered the lapse of time which rendered it difficult for appellant to recall what he was doing on a date more than 6 years ago; the court should not have relied on the appellant's failure to state exactly what he was doing on that date, and at that particular time, in dismissing his alibi considering the appellant's right to a fair trial within a reasonable time whilst he still recollect (sic) events, time, and dates.

3. The court a quo erred in exercising its discretion by sentencing the appellant to death notwithstanding the extenuating circumstances and the mitigatory factors advanced by the appellant, particularly his youthfulness.”

The relief sought by the appellant was for his conviction to be set aside and that he be found not guilty and acquitted. Alternatively, that the sentence of death be set aside and substituted with “any other custodial sentence the court deems appropriate.”

SUBMISSIONS BEFORE THIS COURT

The appellant's submissions

Counsel for the appellant submitted, that, the conviction was not justified, regard being had to the rules and principles relating to the assessment and treatment of circumstantial evidence.

Reliance was placed on R v Blom 1939 AD 188 per WATERMEYER JA and State v Muyanga HH79-13 per HUNGWE J.

In R v Blom 1939 AD 188, the requirements were formulated in the following manner:

“(a) The inference sought to be drawn must be consistent with all the proven facts: if it is not, the inference cannot be drawn.

(b) The proven facts should be such that they exclude every reasonable inference from them save the one sought to be drawn: if these proved facts do not exclude all other reasonable inferences, then, there must be a doubt whether the inference sought to be drawn is correct.”

In State v Muyanga HH79-13, the requirements for a conviction to be justified in a case that rests upon circumstantial evidence were articulated thus:

“(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 no-one else; and

(4) The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation by 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.”

Counsel submitted, that, the court a quo erred in finding that the appellant failed to explain his possession of the firearm which was used to commit the crime. He argued, that, the firearm was recovered in Ruwa on the indications of Taurai Tsikudzawo and that the appellant had no control of it at the time when the crime was committed because it had been removed from the place where he had initially hidden it near Ruwa Rehabilitation Centre.

Counsel maintained, that, the ballistics report, in itself, was not proof of the appellant having been in possession of the firearm at the time of the commission of the crime.

He also submitted, that, the appellant denied or disputed the evidence of Detective Assistant Inspector Mutata, the investigating officer, who testified that the appellant admitted that he had committed the robbery at Ruwa Supermarket where a CZ pistol and cash were stolen and also offered to, and did lead the police officers to the place where he claimed to have hidden the pistol, at some spot along the pre-cast wall at Ruwa Rehabilitation Centre.

With regards to the appellant's defence of alibi, counsel argued that the court a quo ought to have appreciated that the appellant had forgotten some of the events of the day when the crime was committed due to passage of time.

It was also submitted, that, as there was no onus on the appellant to convince the court of any explanation, he ought to have been acquitted as there was a possibility of his explanation being true.

For this proposition reliance was placed on R v Difford 1937 AD 370 where it was stated, that, there is no onus that rests on the accused to convince the court of any explanation - even if that explanation is improbable. Further, that the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but, beyond doubt, that it is false. It was also stated therein, that, if there is any possibility of the explanation being true, then, the accused has to be acquitted.

The judgment of the court a quo was further criticized on the basis, that, the State ought to have, but did not, place before the court, the court record CRB685/11 which would have shown that evidence was led to the effect that the appellant was not charged for the Ruwa Supermarket robbery as he was exonerated by the other accused persons.

The mainstay of the criticism was that there was a second person who had control over the firearm and who could have used it on the day of the murder. Furthermore, that any other person could have used the firearm, and, without evidence of the appellant's possession of it prior to the commission of the murder, it left the evidence “short of the thread of beyond reasonable doubt.”

The court a quo was thus criticized for having unfairly dismissed the appellant's alibi.

With regard to sentence, the contention made on behalf of the appellant was that the court a quo erred by paying lip service to the delay in bringing the appellant to trial; the trial having commenced and ended in 2017, after a period of 7 years.

THE RESPONDENT'S SUBMISSIONS

Per contra, counsel for the respondent contended, that, the court a quo did not misdirect itself when it found that, beyond reasonable doubt, the appellant was the one who unlawfully and intentionally killed the deceased, and, as a result, returned a verdict of guilty of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act.

Counsel for the respondent submitted, that, the court a quo did not err in its finding that the appellant was guilty of the charge of murder.

Counsel argued, that, the appellant was fabricating his story as he stated before the court a quo that he was not involved in the robbery in Ruwa, denied leading the police to the place where he hid the firearm, and leading the police to Taurai Tsikudzawo.

However, before this Court, the appellant changed his story and stated that he hid the firearm which was later removed from the place where he had hidden it and that he was only involved in the robbery in Ruwa and not the murder in Mount Darwin.

It was submitted on behalf of the respondent, that, the authorities are clear that 'beyond reasonable doubt' does not mean 'beyond a shadow of doubt.'

It was also submitted, that, the absence of any explanation by the appellant as to how he came to be in possession of the firearm, renders any suggestion and insinuation that another person may have used the weapon to kill the deceased, fanciful and speculative.

It was also argued, that, it was significant that the appellant knew the person who had removed the firearm from a particular place and was the one who led the police to that person, and, consequently, the recovery of the firearm.

The other significant factor was the fact that the appellant's and Taurai Tsikudzawo's residences are within the same area.

Counsel submitted, that, the fact that the appellant led the police to Taurai Tsikudzawo showed that he knew him.

Counsel also submitted, that, the appellant's connection with the firearm was established by the evidence led before the court a quo. Thus, in the absence of an explanation of his possession of the firearm, the court properly came to the conclusion that it was the appellant who fired the shot that killed the deceased.

Counsel submitted, that, the appellant's testimony could not be trusted.

On the issue of the alibi, counsel submitted that the appellant ought to have called his brother to testify at the trial as his brother could have supported his version of events.

ISSUE FOR DETERMINATION BEFORE THIS COURT

The issue for determination before this court is whether or not the court a quo erred in finding the appellant guilty of murder in terms of section 47 of the Criminal Law (Codification and Reform) Act and thereafter sentencing him to death.

ANALYSIS

(a) Conviction

It is common cause, that, as there was no direct evidence of the shooting of the deceased on the night in question, the appellant was convicted on the basis of circumstantial evidence.

The court a quo, in convicting the appellant of murder, weighed the totality of the evidence placed before it.

From a perusal of the court a quo's judgment, as confirmed by the record of proceedings, the following facts are common cause, or stand uncontroverted:

(i) That, on 7 December 2010 the deceased died as a result of injuries which he sustained after being shot with a gun;

(ii) That, the persons who shot the deceased entered his shop at night and demanded money before shooting him;

(iii) That, the weapon used to shoot the deceased was confirmed by a ballistics examination to be the one that the police recovered at Ruwa and that the exact location of the firearm when it was recovered was pointed out by, or more accurately, with the active participation of Taurai Tsikudzawo.

The court a quo aptly commented:

“What is in contention is whether the police, who were investigating the issue of the firearm, were led to its recovery by the accused person. If the accused indeed led the police to recover the firearm, the next issue arises, namely, whether the recovery of the firearm, through the indications of the accused person, links him to the murder of the deceased.

The evidence of Previous Mutata (the investigating officer) was that the accused person is the one who led them to Ruwa and when he failed to locate the firearm at the place where he had hidden it he then led the police to the residence of his friend, Taurai Tsikudzawo, whom he believed to have removed the pistol to some other place.

Through the involvement of Taurai Tsikudzawo, the police were then able to recover the firearm.

That evidence has not been challenged by the accused person.

What the accused sought to do was to suggest that he himself was not the one who pointed out the place where the firearm was.

The accused person did not dispute that he is the one who led the police to the residence of Taurai Tsikudzawo.

He states, that, he was only seated in the motor vehicle when the police were led, by Taurai Tsikudzawo, to the place where the weapon was hidden. That version accords with the evidence of Previous Mutata insofar as it illustrates that the accused person was indeed present when Tsikudzawo went with the police to the place where he had hidden the firearm following the arrest of the accused.

The accused suggests that he was only arrested because he had been given a mobile phone belonging to Justin Momela to whom he had sold a car battery.”

The court further noted:

“His connection to the recovery of the firearm was established by the evidence led.

If he was not the one leading them to Ruwa and Taurai Tsikudzawo's residence, the police officers would have had no reason to have him in their motor vehicle. He does not explain what he was doing in that motor vehicle.

The accused exhibited so much knowledge about the other cases involving Justin Momela and Taurai Tsikudzawo, but does not explain his connection to them.

The evidence placed before this court shows that his residence is within the same area as that of Taurai Tsikudzawo. It makes sense then that he knew Taurai Tsikudzawo, and is the one who led the police to his residence.

It does not matter that he is not the one who actually pointed out where the firearm had been hidden. He would not have known that since, as Previous Mutata explained, it had been removed by Taurai Tsikudzawo.

If, as the accused would like the court to believe, the police had intended to falsely implicate him, they would have simply stated that he is the one who pointed out where the firearm was to them without involving Taurai Tsikudzawo.

The accused is the one who knew the person who had removed the firearm. He led the police to that person, and the firearm was recovered.

He has not explained his possession of that firearm or how he came to be involved with it.

The firearm is the weapon that was used to kill the deceased. The evidence of the Forensic Ballistics Reports was not challenged.

In the absence of an explanation of his possession of the firearm, the court is entitled to come to the conclusion that the accused is the one who fired the shot that killed the deceased.”…,.

The court a quo further made the observation, that, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt.

The court found that a combination of the following factors pointed to the appellant's guilt. These are:

(i) That the appellant was the one who had possession of the firearm used to murder the deceased; and

(ii) That he had hidden it but found it having been removed by Taurai Tsikudzawo; and

(iii) That he was able to lead the police to the person (Taurai Tsikudzawo) who had changed the place where the weapon was previously hidden;

(iv) The absence of any explanation as to how he (appellant) came to be in possession of the firearm, rendering any suggestion that another person may have used the weapon to kill the deceased fanciful, speculative, and not worthy of belief.

The court a quo also rightly noted, against the appellant, that, he failed to explain what he was doing in the police motor vehicle or his connection to Justin Momela and Taurai Tsikudzawo although he had exhibited so much knowledge about the other cases involving them.

These factual findings were made by the court a quo based on the evidence placed before it. The trial court had the privilege of watching the witnesses on the stand - including the appellant himself. It had the privilege of assessing their demeanour and credibility.

This Court cannot interfere with the findings of fact made by the trial court in the absence of gross misdirection thereof.

In IDBZ v Engen Petroleum Zimbabwe (Pvt) Ltd SC16-20 the Court held that:

“It is a settled principle that the Court will not easily interfere with factual findings made by a lower court unless the findings are grossly unreasonable: see ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S); Hama v NRZ 1996 (1) ZLR 664 (S); Reserve Bank of Zimbabwe v Corrine Granger & Anor SC34-01.”

At the end of the day, the court a quo found that the State had proved, beyond reasonable doubt, the allegations against the appellant and therefore convicted him accordingly.

To the court, it therefore did not matter that he was not the one who actually pointed out where the firearm had been hidden. Also of significance was the fact that the firearm was obtained through a robbery that occurred in June 2010. The appellant confessed that he was in possession of the firearm thereafter but hid it, and Taurai Tsikudzawo only removed it from where he had hidden it after the appellant was arrested in March 2011.

As already stated earlier, the court a quo finally stated:

“The court is convinced that, beyond reasonable doubt, the case against the accused person has been proved, namely, that he is the one who unlawfully and intentionally killed the deceased, Alex Jomboro. In the result, the accused is found guilty of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].”

The court a quo's analysis cannot be faulted. Its cogency is borne out by the evidence on record.

In attempting to analyse the judgment of the court a quo, it is realized that because of its cogency, there is a grave risk of merely further regurgitating or re-iterating the court a quo's analysis. That, in the court's view, is not necessary.

The only inference that can be drawn from the totality of the evidence that was adduced before the court a quo is that the appellant committed the offence.

The court a quo has not been shown to have misdirected itself.

The cumulative effect of the facts elicited from the evidence placed before the court a quo is, in the court's view, to show that the respondent managed to prove, beyond a reasonable doubt, that the appellant indeed committed the murder as alleged.

The court a quo's analysis of the evidence placed before it stands solid and unshaken, even in the face of the scrutiny urged by the grounds of appeal and submissions made on behalf of the appellant.

It can also be said that the appellant's failure, in the particular circumstances of this case, to call his brother to testify as a witness in support of his alibi, tends to negate his defence in the face of the cogent evidence adduced by the State against him.

The appellant dismally failed in his evidence before the court a quo, to give a clear account of where he was on that particular day. In addition, he did not call his brother to testify or lead any further evidence to substantiate his defence that he was with his brother on that fateful day.

The court a quo was thus left with no other option but to consider the evidence placed before it and finally coming to the conclusion that culminated in the conviction of the appellant.

In the court's view, the court a quo did not misdirect itself in any way.

More damning for him, the appellant failed to give an explanation on how he knew where the gun was hidden or who had removed it from that place.

Against all this background, it can safely be said that he led the police to its recovery.

In State v Muyanga HH79-13, the court stated the following:

“The correct approach is first to determine what facts are established by the evidence. The court must then consider all of those facts together as a whole and ask whether it can be concluded, from those facts, that the accused is guilty of the offence charged.

If such a conclusion does not reasonably arise, then, the State's circumstantial case fails because there is no proof of guilt beyond reasonable doubt.

But, if the court finds that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then, before it can convict the accused, it must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the State says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because there is no proof beyond reasonable doubt of the accused's guilt.”…,.

The appellant's conviction is safe and this court, as an Appellate Court, finds no justification for interfering with it.

The conviction is therefore hereby confirmed.

(b) Sentence

The appellant having been convicted of murder in the course of a robbery, the court a quo went on to assess and determine the appropriate sentence in the circumstances.

The court a quo stated that:

“[T]he murder was clearly committed in aggravating circumstances, as it was committed in the course of a robbery.”

It also commented as follows:

“While the court accepts that the Constitution of Zimbabwe 2013 gives it a discretion not to impose the death penalty, and that the law was subsequently amended to give statutory recognition to that discretion, the court considers that there are no grounds justifying the imposition of a penalty less than sentence of death. It would be an improper exercise of judicial discretion for the court to impose a sentence less than death in the circumstances of this case.…,.

In all the circumstances, the court finds, that, the accused has not shown good reasons or cause why sentence of death should not be passed upon him.

In the result, sentence of death is passed upon the accused.”

While the court a quo made reference to the 2013 Constitution and also made an oblique reference to the General Laws Amendment Act 3 of 2016 which made provision for the amendment of section 47 of the Criminal Law (Codification and Reform) Act (Criminal Law Code), such was not necessary.

This is so because section 18(9) of the 6th Schedule to the 2013 Constitution provides as follows:

“(9) All cases, other than pending constitutional cases, that were pending before any court before the effective date may be continued before that court or the equivalent court established by this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced, but —

(a) The procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date; and

(b) The procedure referred to in subparagraph (a) applies to those cases even if it is contrary to any provision of Chapter 4 of this Constitution.

(10) For the purposes of subparagraph (9) —

(a) A criminal case is deemed to have commenced when the accused person pleaded to the charge;

(b) A civil case is deemed to have commenced when the summons was issued or the application was filed, as the case may be.”…,.

In casu, the offence having been committed in 2010, the court a quo ought to have relied on the procedure that was applicable as at that time.

The 2013 Constitution, and the amendments made to section 47 of the Criminal Law (Codification and Reform) Act and sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], had no role to play in the matter that was before it.

In terms of the applicable law, the court had no discretion but to pass a sentence of death on a conviction for murder where there were no extenuating factors.

A reading of the facts in this matter leaves no doubt that there were no extenuating factors attendant on the murder for which the appellant was convicted.

The appellant and his accomplice, who was still at large when the appellant was brought to trial, agreed and planned to commit a robbery. They purposely embarked on a journey to Mt Darwin where they entered the deceased's shop at night.

They were armed.

One of them jumped over the counter, demanded money from the deceased before callously shooting him at close range after failing to get the desired response to his demand.

The deceased was minding his own personal and lawful business of running his shop. The appellant and his colleague brazenly and unashamedly felt entitled to the proceeds of the deceased's sweat. They showed no respect for the sanctity of human life. The deceased needlessly and unfairly lost his life merely because he was working to earn a living as all law-abiding citizens must do. Undoubtedly, his family was negatively affected in various ways by this untimely demise.

In current parlance, Zimbabwe is open for business. It is open for business not only to foreigners but also, if not more so, to Zimbabwean nationals.

The adage that crime does not pay is not a hollow statement. Money is not snatched from those who have worked for it - it is earned by hard work.

The appellant was, at the relevant time, of an age that would normally be expected to have all the energy to work in order to lawfully earn a living.

The deceased, who was far older, was terrorised and killed by the appellant in a show of callous disregard to the deceased's right to life and to property.

In casu, the finding by the court a quo that the murder of the deceased was committed in aggravating circumstances cannot be faulted.

The appellant shot the deceased point blank in the course of a robbery.

Murder committed in the course of a robbery has always been viewed, by these courts, as murder committed in aggravating circumstances.

The court a quo cannot be faulted in viewing it accordingly.

The deceased succumbed to the gun shot. The appellant had pre-meditated this offence by arming himself with the firearm before entering the deceased's shop for purposes of committing a robbery.

Before the court a quo, the appellant sought, in mitigation, to rely on the fact that he was 25 years of age at the time of the commission of the murder hence his youthfulness ought to have been taken into consideration.

In Norman Sibanda v The State SC39-14 counsel for the State successfully argued, and the appellant's counsel properly conceded, that, youthfulness would ordinarily constitute an extenuating circumstance only if the actions of the offender are consistent with immaturity.

However, in casu, the appellant cannot take refuge behind his age.

On the aspect of the appellant having been 25 years old at the time that he committed the offence in 2010, the court did not accept that at the age of 25 the appellant failed to appreciate the implications and consequences of his conduct when he carried a firearm and deliberately shot his victim.

We find no fault in this assessment by the court a quo.

It is also the court's view, that, at 25 years of age, a person has the capacity to decipher wrong from right.

In any event, the facts of this matter are not consistent with immaturity emanating from youthfulness. To hold otherwise would only serve to create a state of chaos in society given the prevalence of the commission of offences by those of youthful age.

It is significant, in this regard, that the court a quo also noted that there was careful planning and execution of the murder as the appellant carried the weapon himself to the scene of the crime.

That type of conduct is consistent with adulthood rather than juvenile immaturity.

In the court's view, the appellant did not succeed in showing that the sentence imposed by the court a quo warranted interference by the Appeal Court. As has been already alluded to, this is a case where a robbery escalated to murder in aggravating circumstances.

The appellant's appeal against sentence thus lacks merit and ought to be dismissed.

No misdirection on the part of the court a quo having been shown, this court accordingly issued an order dismissing the appeal in its entirety, as indicated at the beginning of this judgment.

SSC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME SHAUN CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

On 11 March 2015, the High Court granted part of the claim sought by Valentine Ziswa and his wife Margaret Ziswa (the cross appellants) against Graeme Shaun Chadwick and Landos (Pvt) Ltd (the cross respondents).

The court a quo dismissed the claims of the cross-appellants as against the second cross-respondent in their entirety and granted part of the claims as against the first cross respondent.

The cross appellants seek a reversal of the dismissal orders issued a quo.

The order issued by the court a quo reads as follows:

“In the result, it is ordered that:

1. The plaintiffs claims against the second defendant are hereby dismissed with costs.

2. The plaintiffs claim (a) against the first defendant succeeds only in the sum of $8,808 which the first defendant is directed to pay the plaintiffs.

3(a) The plaintiffs claim (e) partially succeeds to the extent of the 4km LTC Electric cable while the rest is hereby dismissed.

(b) The first defendant shall pay to the plaintiffs the sum of $84,000 being the replacement value of the LTC electric cable removed from the plaintiffs farm.

4. The first defendant shall pay the plaintiffs the sum of $780 being value of labour hired to clear tobacco stalks and related expenses.

5. The plaintiffs claims (b), (c), (d), (f), (g), (j) and (l) are hereby dismissed.

6. Absolution from the instance is granted in respect of plaintiffs claims (h) and (k).

7. The plaintiffs shall pay 20% of the first defendant's costs of suit.”

The first cross appellant is Valentine Ziswa (Ziswa) while the second cross-appellant is his wife, Margaret Ziswa. I will cumulatively refer to them in this judgment as the lessor.

The first cross-respondent is Graham Shaun Chadwick (Chadwick) and the second cross-respondent is Landos (Pvt) Ltd (the Company).

Graham Shaun Chadwick was a director in Landos (Pvt) Ltd, which he also used as his special purpose vehicle or agent to conduct his farming operations on Ziswa Farm (the farm) and on three other surrounding farms, namely, Gijima, Kelvin, and Landos.

THE BACKGROUND

On 20 March 2015, Graham Shaun Chadwick filed a defective Notice of Appeal against the cross appellants, which did not indicate the part of the judgment he sought to impugn.

He, thereafter, filed a contested chamber application for condonation and extension of time within which to appeal on 11 January 2018, which was dismissed with costs on 21 March 2018.

The effective disposal of the main appeal in this manner left the cross appeal pending.

FACTS

On or before 1 September 2008, Valentine Ziswa and Graham Shaun Chadwick entered into a verbal agreement for the lease of the farm and the inventoried equipment. The description, quantities, and state of the leased equipment was recorded in the comprehensive inventory the parties drew in October 2008.

The tobacco season in Zimbabwe generally runs from September to August and sales generally take place between March and June.

Graham Shaun Chadwick was on the farm during the 2008-2009, 2009-2010, 2010-2011, and 2011-2012 seasons (hereinafter called the first, second, third, and fourth seasons, respectively).

On 9 January 2009, Valentine Ziswa and Graham Shaun Chadwick signed a 10-year lease agreement.

On the same date, Valentine Ziswa and his wife (the First Partner) executed a second “Joint Venture Agreement” (JVA) with Graham Shaun Chadwick (Second Partner) for the “long term development” of the farm.

The two agreements were backdated to 1 September 2008.

Graham Shaun Chadwick not only leased the farm and the inventoried property, but, in addition, undertook to erect permanent structures (in each season) of an equivalent value to the seasonal rental payable.

In terms of clause 1 and clause 2, Graham Shaun Chadwick leased “the land, together with all buildings and other permanent improvements and certain immovables” for the ten year period from 1 September 2008 to 31 August 2018 for the purpose of growing “30ha of tobacco, 40ha of maize, 20ha of wheat and any other crop agreed between the parties.”

In terms of clause 3, the rental payable would be “6 per cent on the US$ of the gross turnover of the crops produced on the said land inclusive of bonuses and hailstorm insurances.”

In respect of tobacco, the rent was to be paid into the lessor's FCA by stop order raised at the auction floor, and cash payments were to be made in respect of other crops.

In addition to the rental, Graham Shaun Chadwick would, in terms of clause 4(d), be responsible for the repairs and maintenance of tractors and the inventoried equipment leased to him with effect from 1 September 2008.

Lastly, clause 9 stipulated that:

“This agreement constitutes the entire agreement between the parties, and no representation or undertakings given by one of them to the other of them prior to the execution hereof, and no variation of the conditions hereof, shall have any force or effect unless recorded in writing and executed by the parties hereof.” (The underlining covers the handwritten portions of the otherwise typeset agreement).

The Joint Venture Agreement (JVA) substantially duplicates the lease agreement. Clause 3 thereof reads as follows:

“3. The rent payable by the lessee to the lessor shall be 6 per cent per centum of the gross turnover in respect of the crops produced on the said land, and payment of such rent/lease shall be secured by means of STOP ORDER given by the lessee in favour of the Company against proceeds of tobacco sold through TOBACCO SALES FLOOR. Such PAYMENT shall be executed and registered as soon (sic) may be after the signing of this lease. 31 MARCH, 3 APRIL, 6 END OF JULY. MAIZE 1.5 TON MONTHLY.” (The underlined words and figures are handwritten)

It was common cause that the two agreements are complementary and separate and distinct. The requirements of the Joint Venture Agreement (JVA) were additional to the rental payable.

It was also common cause, that, Graham Shaun Chadwick was an active councillor for the Zimbabwe Tobacco Association (ZTA) for six (6) years and had been its Vice-President for another two (2) years.

He introduced the Zimbabwe Tobacco Association (ZTA) proforma lease and Joint Venture (JV) agreements, and, together with Valentine Ziswa, supplemented and annotated the terms and conditions therein by hand.

Graham Shaun Chadwick grew maize during the first season only and abandoned it in subsequent seasons in preference to the more lucrative tobacco crop. He never grew wheat on the farm.

Graham Shaun Chadwick did not abide by the direct deduction method prescribed in the agreements. He did not disclose to the lessor his prior preferential stop order obligations to the Zimbabwe Leaf Tobacco Company (Pvt) Ltd.

By 10 May 2010, Graham Shaun Chadwick had repaired a weir, put in a pump and generator, laid underground irrigation pipes, erected a centre pivot, paid for the labour for the reconstruction of a burnt down tobacco barn “maintained” all 14 barns by putting in place the necessary appurtenances for curing tobacco, repaired furnaces and sheds, and, at a cost of US$2,700 constructed 11 two roomed staff houses.

By letter dated 22 February 2011, Graham Shaun Chadwick offered to increase lease rental to 8%.

The offer was not accepted.

Instead, the lessor made the counter offer proposed in the detailed draft agreement, which the lessor signed on 13 March 2011.

The counter-offer was, in turn, rejected by Graham Shaun Chadwick.

Between 10 January 2012 and 18 May 2012, the parties failed to amicably resolve the lessor's demands for arrear rentals, maintenance of the leased equipment, and the repatriation of leased property that Graham Shaun Chadwick allegedly took to other farms.

In frustration at the impasse, the lessor sought to exercise a lien over the tobacco produce that was on the farm.

They were, by consent, interdicted by Graham Shaun Chadwick and Landos (Pvt) Ltd, on 24 May 2012 in case No. HC5477/12.

On 10 June 2012, the Ziswas instigated the arrest of Graham Shaun Chadwick for theft of some of the 2008 inventoried property. The complete police docket, compiled by Sergeant N'andu (IO), was produced by consent as exhibit 5.

Sergeant N'andu (the IO) first attended at the farm on 12 June 2012. On 19 June 2012, he conducted a verification or “exit” inventory with Valentine Ziswa and a proxy of Graham Shaun Chadwick, at the direction of the Area Public Prosecutor for Rusape (APP).

By letter dated 2 July 2012, Graham Shaun Chadwick cancelled the lease agreement and immediately vacated the farm.

On 5 September 2012, the Area Public Prosecutor for Rusape declined to prosecute, adjudging the criminal complaint to be a civil dispute.

On 26 September 2012, the lessor issued summons against the defendants claiming an aggregate sum of US$456,699 under 13 heads. These comprised of the following claims:

(a) Arrear rentals of US$64,160 for the fourth farming season;

(b) A refund of rates and levies of US$1,980 paid to the Makoni Rural District Council for the fourth farming season;

(c) The lessor's share of the hailstorm insurance proceeds of US$5,500 in respect of the second farming season;

(d) The outstanding developments for the first three farming seasons, represented by the value of the centre pivot that was removed from the farm, in the sum of US$67,507;

(e) Other enumerated property valued at US$187,707 that was also removed from the farm;

(f) The estimated damages to recovered property of US$15,905;

(g) US$7,600 for the damage to the fence and gates on the farm;

(h) US$15,008 for the repairs to the damaged tobacco barns and flue pipes;

(i) US$780 for removing the fourth season tobacco stalks;

(j) US$26,313 for vandalized overhead water storage tanks, pipes, workers houses, electrical underground cables, dams, pump unit, boreholes, and transformer;

(k) US$15,000 for maize deliveries contractually due to the lessor during the second to fourth farming seasons;

(l) US$4,240 for the tobacco seedlings grown on the farm and sold to other farmers;

(m) US$45,000 damages for loss of income in respect of the 2012/2013 tobacco cropping season caused by the premature and abrupt termination of the agreements.

THE PROCEEDINGS A QUO

The lessor made the following contentions:

The two agreements had separate and distinct obligations. Landos (Pvt) Ltd had a direct and substantial interest in the two agreements, and was, together with Graham Shaun Chadwick, therefore liable for the various contractual breaches that gave rise to the 13 claims.

The lessor's documentary and oral evidence established both liability and quantum in respect of claim (a), (d), (e), (f), (g), (h), (j), (k) and (l) at the higher rate of 8 per cent and not at the 6 per cent in the two agreements.

The lessor abandoned claim (m) and conceded that Graham Shaun Chadwick and Landos (Pvt) Ltd be absolved from the instance in respect of claims (b), (c) and (i) on the ground that the lessor had failed to established the due amounts.

Graham Shaun Chadwick conceded that the annotations formed part of the terms agreed by the parties on 9 January 2009.

Counsel for Graham Shaun Chadwick argued, that, the lessor failed to establish both liability and quantum.

He submitted, on the authority of Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (S), that, the oral variation of the rental rate from 6 per cent to 8 per cent in violation of the non-variation clause (Clause 9 of both agreements) of the agreements was inefficacious and invalid.

He also relied on the twin principles of privity and sanctity of contracts enunciated in CHRISTIE: The Law of Contract in South Africa, 6th ed, 2010 Lexis Nexis…, to call for the dismissal of all the claims sought against Landos (Pvt) Ltd.

Counsel, however, conceded that Graham Shaun Chadwick was liable for unpaid rental of US$8,808 for the fourth season and US$36,000 for the LTC line [falling under claim (e)] and not the respective US$64,160 and US$84,000 sought by the lessor.

He further contended, that, as the lessor had failed to establish liability or where liability had been established, the quantum thereof in respect of claims (b), (c), (d), the remainder of (e), (f), (g), (h) and (j), the claims fell to be dismissed.

Counsel requested the court a quo to discard the evidence of the valuator for the reason that it was unconventional and unprofessional.

He argued, that, the valuation was in breach of the 'objective' and 'appreciable help' standards expected of expert evidence that are propounded in Stock v Stock 1981 (3) SA 1280 (A)…,; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)…,; and Menday v Protea Assurance Co. Ltd 1976 (1) SA 565 (E)…, and articulated in SCHWIKKARD & Van der MERWE's Principles of Evidence, Juta 2009…,.

He, therefore, prayed for the dismissal of claims (d) (e), (f), (g), (h) and (j), which rested on the valuator's computations.

Counsel further contended, that, the claims ought to be dismissed for the further reason that the lessor had not amended the quantum to reflect the new amounts touted by the valuator some of which were higher than the individual breakdowns set out in annexures 2 and 3 to the summons.

THE FINDINGS A QUO

The court a quo made the following findings:

The only effectual agreements were the lease and the Joint Venture agreements dated 9 January 2009 and not the draft agreement of 13 March 2011.

The operational rental rate was 6 per cent and not 8 per cent. This was because the offer of 22 February 2011 had not been accepted nor had the non-variation clause been invoked.

Valentine Ziswa was an inconsistent, unreliable, untruthful, and greedy witness.

He prevaricated on whether the tenure of the agreements was 5 years, 8 years, or 10 years and whether the rental rate was 6 per cent, 8 per cent, or 10 per cent.

He was greedy because he unjustifiably claimed for municipal imposts, maize deliveries, seedlings, and hailstorm insurance proceeds, which were all not covered by the two agreements. He also demanded for the value of the centre pivot, which he had categorically rejected as constituting a permanent structure.

The court a quo also excoriated the valuator for flaunting his professional qualifications and experience at the expense of conventional valuation principles. It, therefore, discarded his depreciated replacement cost computations.

Graham Shaun Chadwick, whose demeanour was highly extolled, was found to be a truthful, good, and reliable witness.

His status as an accomplished tobacco farmer with 20 years experience, and who exuded confidence and conceded where he was liable, endeared himself to the court a quo at the expense of Valentine Ziswa whose penchant for renting out instead of farming on his own account was deplored by the court.

Notwithstanding the contrary general findings on credibility of Valentine Ziswa and the valuator, the court a quo believed Valentine Ziswa's oral testimony on the US$780 claim on tobacco de-stalking and the chartered accountant's valuation of the LTC line. It, however, dismissed the rest of their evidence on the valuation of all the other claims. It further held that seedlings were not a crop as they could not be sold at the auction floors.

The court a quo dismissed the claims against Landos (Pvt) Ltd on the twin basis of lack of privity of contract and sanctity of contracts.

It held, that, these cardinal legal principles could not be negated by Graham Shaun Chadwick's directorship of the company, his use of the company's letterhead in correspondence with the lessor and bank account to effect payment of his lease obligations.

It issued the order that I adverted to at the commencement of this judgment.

Aggrieved by the order granted a quo, the lessor appealed to this Court on the following grounds:

“1. The court a quo erred in not finding that the reduction of part of the agreement between the parties to writing and the existence of the non-variation clause notwithstanding, on the entirety of the evidence before the court, the agreement between the parties consisted in part of the written portion and in part of the oral agreement sworn to by the cross appellants.

2. The court a quo erred, for the stronger reason, in not finding that the second cross respondent was privy to the whole of the agreement between the parties and in dismissing the claim against it.

3. The court a quo erred in its treatment of the evidence and assessment of the cross appellants claim with the result, that, the court misdirected itself in its gratuitous conclusions on the first cross-appellant's demeanour and motives culminating in the rejection of the cross-appellants claims on this flawed basis.

4. The court a quo erred in not finding that the rent for the use of the cross-appellants farm varied from 6 per cent to 8 per cent of the gross annual turnover realised on the farm.

5. The court a quo erred, in any event, in accepting the appellant's bare testimony that the sum of US$21,000 paid to the cross appellants was towards the rental for the 2011-12 season and in deducting the same from the rental due and owing to the cross appellants.

6. The court a quo erred in its treatment of the evidence in concluding, that, the claim for the tonnage of maize was not within the parameters of the agreement of the parties and in rejecting the cross-appellants testimony regarding the quantum thereof.

7. The court a quo erred in holding, that, the claims for the centre pivot and generator did not fall within the parameters of the developmental agreement.

8. The court a quo erred in holding that the seedlings produced on the cross appellants farm, but sold elsewhere, were not produce for the purposes of the parties agreement, and in rejecting the cross-appellants quantification thereof.

9. The court a quo erred in finding, as it did, that there was no evidence to substantiate the cross appellants claim (e) (property removed and not returned) and claim (g) (removed and/or damaged fences and gates) and in finding the property could have been unusable.

ALTERNATIVELY

The court a quo erred, in any event, in dismissing the said claims as opposed to granting absolution from the instance.

10. The court a quo erred in rejecting the evidence of Pange purely on the basis that he had used one as opposed to three quotations which had been sourced by the cross-appellants, and had applied the general accounting depreciation formulae without a physical examination of the property in question.

11. The court a quo erred in not awarding the claim for the irrigation pump, which the appellant conceded in his evidence and offered to compensate for the same.

12. The court a quo erred in accepting as true the appellant's testimony based solely on the fact that he managed to impress the judge in terms of his demeanour.”

The cross-appellants sought the success of the cross appeal with costs, the amendment of the judgment a quo by granting, jointly and severally, the one paying the other to be absolved:

(i) Arrear rentals of $67,502=40 for the 2011-12 season (being 8 per cent of gross realization of US$843,780 from sale of 205,800kgs at US$4=10 per kg);

(ii) Alternatively, judgment in the sum of US$50,626=80 being 6 per cent of the above gross realisation;

(iii) Judgment in respect of claims (d), (f), (j) and (i);

(iv) Judgment for the reduced sum of US$364,729 as particularised in exhibit 3; and

(v) Costs of suit against the cross respondents.

THE ISSUES

The issues that arise from the grounds of appeal are the following:

1. Whether the variation clause was waived by the parties to the lease agreement.

2. Whether the second cross-respondent was liable to the lessor's claims.

(a) Rentals for the fourth season (a portion of claim (a)).

(b) The value of the developments in lieu of the Centre Pivot (claim (d)).

(c) Damages for missing equipment (including the irrigation diesel pump whose liability was conceded) (claim (e)) and for damaged property and equipment on the farm (claim (f)).

(d) Repairs to tobacco barns (claim (h)).

(e) Vandalized overhead water tanks, reservoirs, boreholes, and staff houses and their connecting pump unit, cables, electrics, and pipes claim (j).

(f) Maize deliveries due for the second to fourth seasons (claim (k)).

(g) Value of tobacco seedlings (claim (l)).

3. Whether or not the court a quo properly exercised its discretion in respect of costs.

THE ARGUMENTS BEFORE THIS COURT

At the onset of his submissions before this Court, counsel for the lessor abandoned claims (b), (c) and (g).

He persisted with the appeal against the dismissal of the entire claim against the company, the part dismissed in respect of claims (a) and (e), and the dismissals against claims (d), (f) (h), (j), (k) and (l).

Counsel for the lessor contended, that, the dismissal of the lessor's claims against Landos (Pvt) Ltd was erroneous.

He argued, that, the resolution passed by Landos (Pvt) Ltd, on 18 May 2012, authorising Graham Shaun Chadwick to “represent the company in any legal matter against Mr and Mrs Ziswa” before the institution of action proceedings on 26 September 2012, showed that it had a direct and substantial interest in the two agreements.

He further argued, that, the main credibility findings in favour of Graham Shaun Chadwick and against Valentine Ziswa, upon which the court a quo premised its dismissal of the lessor's claims were, on the totality of the adduced evidence, irrational.

He argued, that, notwithstanding the embodiment of the non-variation clause in the lease agreement, the lessor had, contrary to the finding a quo, established that Graham Shaun Chadwick had, by conduct, waived the lease rental rate from 6 per cent to 8 per cent on the second and subsequent seasons.

He further argued, that, the valuation testimony of the chartered accountant had proved the damages suffered by the lessor as at the date Graham Shaun Chadwick cancelled the agreements and vacated the farm.

Lastly, he contended that the costs order granted a quo constituted a patent failure in the exercise of discretion warranting interference by this Court.

Per contra, counsel for Graham Shaun Chadwick and Landos (Pvt) Ltd vehemently supported the impugned findings and conclusions of the court a quo.

He argued, that, the claims against Landos (Pvt) Ltd were rightly dismissed because it was not privy to the lease agreements.

He strongly contended, that, having acted as an agent, it could not be sued either separately or together with its principal.

He further contended, that, the non-variation clause precluded the lessor from relying on any variation derived from an oral agreement or on the offer to increase the rate to 8 per cent which they did not accept.

He submitted, that, an oral agreement could not waive a non-variation clause.

He further contended, that, the court a quo had not relied on the demeanour of the witnesses only but also on the inconsistencies that characterized the evidence of the lessor's star witness, Valentine Ziswa.

Lastly, he contended that the valuator's testimony was rightly discarded for being both unconventional and unprofessional.

Counsel impugned his competence on two bases:

(i) The first was that he had relied on the quotations availed to him by Valentine Ziswa without conducting a physical inspection of the equipment.

(ii) The second was that he had further relied on internet sites, that he failed to disclose, in ascertaining the life span of some of the equipment listed in exhibit 3.

ANALYSIS OF THE LAW AND THE FACTS

WHETHER THE FINDING OF FACT MADE A QUO IN RESPECT OF VALENTINE ZISWA AND GRAHAM SHAUN CHADWICK'S TESTIMONIES WAS IRRATIONAL

It is well settled in this jurisdiction, that, a court of appeal will only interfere with the findings of fact of a trial court where the findings are irrational.

The locus classicus on the point is Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, where this Court said:

"It is not enough that the Appellate Court considers, that, if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always it has the materials for so doing."

To the same effect is RBZ v Granger & Anor SC47-09…, which held that:

“An appeal to this Court is based on the record. If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts 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 Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Mettalon Gold Zimbabwe v Golden Million (Pvt) Ltd SC12-15…,.; and ZINWA v Mwoyounotsva SC28-15.

Counsel for the lessor contended that “the entire premise of the court a quo's conclusions on Ziswa's testimony was his demeanour. (It) did not trust (him and) on that basis disregarded much of his evidence.”

At page 12 of the judgment, the court a quo held that:

“Valentine Ziswa did not make a good witness at all. His demeanour was extremely given to wild exaggerations of his claims. He struck me as someone actuated by an improper motive and determined to maximize on what he can recover from the tenant at all costs thereby reducing the claim to ridiculous levels. He just tried too hard. A few examples will suffice.”

The examples related to his initial reliance on the reduced tenure of 5 years and the lease rental rates ranging from 6 per cent to 10 per cent written into the draft agreement of 13 March 2011; the 10 per cent in his letter of demand; reliance on oral agreements for the maize and RDC imposts claims; claiming the value of the centre pivot that he had rejected; reliance on “poorly drafted lease agreement with endless un-initialed annotations as well as blank portions of important clauses”; suing the company; inflated claims for arrear rentals; claiming arbitrary figures from hailstorm proceeds and seedlings; denying despoiling Graham Shaun Chadwick in May 2012; disputing improvements made on the farm by Graham Shaun Chadwick; and proxy rather than personal farming.

In comparison, at p22-23 of the judgment, the court a quo said of Graham Shaun Chadwick:

“Chadwick was clearly a good and reliable witness. His demeanour was always good. He readily made concessions where such was called for and admitted liability where clearly he was liable. He struck me as one who exudes confidence with a lot of knowledge in tobacco farming and with a willingness to compensate fairly for what he benefitted. Where his evidence is to be contrasted with that of Ziswa, I would prefer his. Chadwick's biggest undoing is that he appears to have run his activities at the farm by remote control and was clearly not hands on. He left most of his activities to his employees, including the very important task of verifying equipment at termination.”

The assessment of evidence is an onerous task for a trial court especially in a case such as this where the oral evidence encompasses in excess of 300 pages and is accompanied by documentary exhibits in excess of 200 pages.

Superior Courts in South Africa and in this country have, however, laid down certain guidelines that might ameliorate the difficult task.

The South African Supreme Court of Appeal cautioned against over-reliance on demeanour in Medscheme Holdings (Pvt) Ltd v Bhamjee 2005 (5) SA 339 (SCA)…, thus:

“It has been said by this Court before, but it bears repeating, that, an assessment of evidence on the basis of demeanour, the application of what has been referred to disparagingly as the 'Pinocchio Theory' without regard for the wider probabilities, constitutes a misdirection. Without careful evaluation of the evidence that was given (as opposed to the manner in which it was delivered) against the underlying probabilities, which was absent in this case, little weight can be attached to the credibility findings of the court a quo.”

In this jurisdiction, MUSAKWA J…, in S v Makomeke HH118-11…, outlined the approach to assessing credibility, which is applicable in both criminal and civil trials thus:

“In S v Sauls & Ors 1981 (3) SA 172 (A) at 180E-G, DIEMONT JA said:

'There is no rule of thumb or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider its merits and demerits, and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told….,. It has been said more than once, that, the exercise of caution must not be allowed to displace the exercise of common sense.'

In Zimbabwe, much the same approach has been adopted in S v Nyati 1977 (2) RLR 315 (A) at 318E-G.”

Again, though enunciated in the context of a criminal trial, in S v Makanyanga 1996 (2) ZLR 231 (H)…, GILLESPIE J graphically warned judicial officers against allowing the administration of justice to “be the hostage of the (witness) whose insincere but convincing blandishments must prevail over the stammering protestations of truth by the diffident (or) frightened” witness.

A proper consideration of the totality of the evidence on record shows, that, the court a quo misdirected itself in assessing the credibility of Valentine Ziswa and Graham Shaun Chadwick.

It misconceived the material evidence led by Valentine Ziswa, which Graham Shaun Chadwick either agreed with or did not controvert.

In my view, two critical factors emerge from the two common cause factors pertaining to the two agreements:

(i) The first is that, although the two agreements are strikingly similar and complementary, they relate to two different aspects. They are complementary in that the blank spaces regarding the name of the farm and the date of commencement of the lease, that were omitted in the lease agreement, were provided in the Joint Venture Agreement (JVA).

(ii) The second is that the court a quo did not relate to the effect of the annotated terms of both agreements.

At p19 of the judgment, the court a quo found that:

“He agreed that he took occupation of the farm in terms of a lease agreement and that a second JVA was also signed. He confirmed that the lease agreement signed on 9 January 2009, together with its annotations contains the terms agreed upon by the parties and governed their relationship.”…,.

It will be recalled, that, the annotations on the copies of the agreements produced a quo by the parties were the same.

The annotations on clause 4(c) of the lease agreement required Graham Shaun Chadwick to produce 10ha of maize for the lessor and 3ha of other crops in addition to the rental payment.

In my view, reliance on the rate of 8 per cent did not relegate Valentine Ziswa to a 'dithering' 'inconsistent' and 'greedy' litigant.

It does not appear to me that any of the “few examples” highlighted by the court a quo had the effect of eroding the probative value of Valentine Ziswa's evidence.

It does not appear to me, that, a vigorous pursuit of one's perceived rights, even one based on a misconception of the relevant law and requisite proof, could conceivably render a witness untruthful.

In any event, all the posited “few examples” relate to the construction rendered by Valentine Ziswa to uncontroverted facts rather than to a falsification of those facts.

It seems to me, that, the findings a quo, that Graham Shaun Chadwick was a credible witness, ran against the grain of the evidence.

A dispassionate reading of his testimony under cross examination shows, that, he could not dispute and did not dispute, the clear evidence on the entry inventory, which showed that he assumed control of the listed leased equipment.

It is inconceivable that he would have been able to plough and prepare his four farms with one tractor when the lessor handed, and he took over, three (3) functional tractors.

He only complained, that, the equipment was scrap for the first time in evidence and never at any period during the four seasons he leased the farm.

He was ambivalent on whether or not he removed equipment from the farm, and on whether he damaged any property.

While he may have repaired some equipment during his tenure on the farm, it is apparent from exhibit 2 that he left the farm equipment, and the lands, in a desolate state.

On his first visit to the farm, Sergeant N'andu (the IO) saw “pure vandalism”. His testimony to that effect was not impugned.

Lastly, in his summary of evidence, Graham Shaun Chadwick deliberately misled the court that he had faithfully abided by all his contractual obligations.

These, and many other instances too numerous to mention, portrayed him as the quintessential deceptive and untruthful witness that judicial officers ought to be wary of.

I, accordingly, agree with counsel for the lessor, that, the court a quo misdirected itself on the credibility findings that it rendered.

The third and twelfth grounds of appeal must therefore succeed.

Appealed SC104-22 : STEVEN MUSIMIKE vs THE STATE
Ruled By: GWAUNZA DCJ, UCHENA JA and KUDYA AJA

The appellant appeals against the judgment of the High Court dated 9 September 2019, wherein the court a quo dismissed his appeal against conviction by the Magistrates Court on a charge of criminal abuse of office under section 174(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the ...

THE FACTS

The facts in this case are generally common cause:

On 26 May 2015, the appellant and Obert Tafadzwa Charamba (the co-accused) were jointly charged with criminal abuse of office at the Beitbridge Magistrate's Court.

On 9 November 2015, they were convicted and sentenced to pay a fine of US$700, or, in default of payment, 6 months imprisonment with an additional 5 months imprisonment suspended for a period of 5 years on the appropriate conditions of future good conduct.

The appellant and the co-accused were employed by the Zimbabwe Revenue Authority (Zimra) as a Revenue Supervisor and Loss Control Officer, respectively. The appellant was stationed at the container depot at the Beitbridge border post. The co-accused was based in Harare but was on relief duties at the scanning unit at the same border post in December 2014.

On 23 December 2014, Isaac Musharu (the driver) cleared all the manual customs formalities with the help of Christian Mugwali, a Beitbridge based freight and clearing agent: the customs clearance documents comprised, consignment note, the commercial invoice, road manifest and SADC certificate of origin issued by the South African exporter, the South African bill of export, the local bill of entry, and the gate pass or release order issued on entering Zimbabwe.

Duty was paid for the consignment in the sum of US$29,303=88.

He was driving a horse (Registration Number ABZ 4226) which was drawing two trailers (Registration numbers ACE 9470 and ACE 9471). The trailers were laden with 2,514 cartons of liquor (the consignment) imported from Musina in South Africa by the local Bulawayo based Turkey Trading (Pvt) Ltd (the importer).

His last port of call was the scanning unit, where he handed over his manually cleared customs documents, inclusive of the bill of entry number C93285, to the co-accused at 11pm.

The co-accused made a cursory physical examination of the consignment.

He directed Mutero, a ZIMRA escort driver, to take the truck to the container depot. At midnight, and before the truck was driven to the container depot, the clearing agent attended at the scanning unit, at the behest of Isaac Musharu (the driver).

The co-accused referred the consignment to the container depot because the electronic clearance system had “red flagged” the importer for possible acts of smuggling previous liquor consignments into the country.

He caused this reason to be entered into the “Referred to Container Depot Register” by his subordinate, one Eric Gorondondo.

Isaac Musharu (the driver) and the clearing agent, however, assumed that the consignment was being referred to the container depot for an accentuated physical examination.

The consignment was received at the container depot by the security guards on duty.

On 24 December 2014, Isaac Musharu (the driver) and the clearing agent alleged that two of the appellant's subordinates inspected and reconciled the consignment with the commercial invoice and the bill of entry. No anomalies were found.

The consignment was not released.

Instead, the appellant, in colourful Shona prose (which Isaac Musharu (the driver) and the clearing agent understood to mean “the vehicle has been impounded”), impounded the consignment and ordered the driver to uncouple the horse from the trailers.

The driver signed the “leave the consignment in the container depot” form.

The appellant impounded the consignment in compliance with the instruction endorsed on the consignment note by the co-accused for the detention of the consignment as a lien in lieu of impending investigations of the purported smuggling activities undertaken by the importer in respect of previous liquor imports from Musina.

He, however, did not pay heed to the co-accused's suggestion to raise, in terms of section 201 of the Customs and Excise Act [Chapter 23:02], an “embargo” against the consignment.

He also rebuffed the requests, to similar effect, made on 25 and 27 December 2014, by Amkela Ndebele, the clearing agent's Bulawayo based Managing Director, to issue detention documents to the importer.

During Amkela Ndebele's second visit, on 27 December 2014, the appellant asserted:

(i) Firstly, that the consignment would be detained until the smuggling investigations were completed.

(ii) Secondly, that the investigation was being conducted by his head of station (Acting Regional Manager Mungani), head of section (Enforcement Manager Dumbu) and the Technical Manager (Chamboko).

He further demanded copies of all the customs clearance documents (pertaining to the previous liquor consignments) issued to the importer between September and December 2014, to facilitate the timeous conclusion of the investigations.

The same documents were also demanded by, and availed by the importer to the Acting Regional Manager as a condition precedent to the release of the shipment consequent to the consensual order, issued on 14 January 2015, by the Bulawayo High Court in case number HC16/15.

It was also common cause, that, the appellant did not issue any detention documents, despite demand from the importer for him to do so, until the cargo was released pursuant to the consensual order.

It was further common cause, that, the co-accused was required by the dictates of his duties to enter the reason for referring the consignment to the container depot in the electronic clearance system 'Referred to Container Depot Register' the 'Inspection Act' and if the electronic system was down, endorse the reason on the back of the driver's copy of the bill of entry.

He was further required to enter the reason for doing so into the ZIMRA electronic clearance system.

These entries, amongst other purposes, served to alert the officials at the container depot what to check for (values, tariffs, or quantities).

Likewise, the appellant was required to issue detention documents for the consignment.

He could issue a notice of seizure, a receipt of items held (RIH), or Form 45 to the importer.

In his testimony on the procedure pertaining to these documents, the Acting Regional Manager asserted that once a notice of seizure or a receipt of items held (RIH) was issued, the consignment would be carted to a warehouse for storage.

Where, however, Form 45 was issued, the consignment would be detained at the container depot until the queries raised in that form were all cleared by the importer or his clearing agent.

It was also common cause that the appellant and the co-accused were public officers.

It was further agreed, that, neither of them acted in accordance with the dictates of their respective public duties. Rather, by these indisputable omissions, they acted contrary to their respective duties as public officers.

The real issue that confronted the trial court, and the court a quo, was, therefore, whether the appellant (and his co-accused who did not appeal) had the intention to abuse his public office by disfavouring the importer when he failed in his sworn duty to issue the requisite detention documents between 24 December 2014 and 14 January 2015.

THE FINDINGS IN THE MAGISTRATES COURT

The trial court accepted the evidence adduced by the Acting Regional Manager on the procedures that the appellant and the co-accused ought to have followed in the referral of the consignment to and detention thereof at the container depot.

It found, that, the prosecution had established, beyond a reasonable doubt, that the appellant had negated his duty of not only recording the results of the physical examination in the “Inspection Register” but also of issuing the requisite detention documents to the importer.

Likewise, it found that the co-accused had acted contrary to his duties by not endorsing the reasons for referring the consignment to the container depot in the system and on the back of the bill of entry.

The trial court found that their respective conduct was prejudicial to the importer, and, accordingly, found them guilty as charged.

The trial court did not relate to the reverse onus and misconstrued the testimony of the Regional Manager.

The Regional Manager asserted, in his evidence in chief, that, he never checked into the electronic clearance system but merely checked the back of the bill of entry and the “Physical Examination Register”.

THE GROUNDS OF APPEAL A QUO

The appellant appealed to the court a quo on the following grounds of appeal:

“1. The court a quo misdirected itself in convicting the appellant when there was no evidence led, beyond a reasonable doubt, that the appellant committed the offence.

2. The court a quo erred in convicting the appellant when all the essential elements of the offence were not proved, in particular the mens rea.

3. The court a quo erred and misdirected itself in basing its conviction of the appellants on the grounds that the appellant had overall say on the issuance of detention documents when in fact evidence to the contrary had been led by the appellant and not disproved by the respondent.

4. The court a quo also misdirected itself in failure to consider the appellant's defence which was not disproved by the respondent.”

THE ARGUMENTS A QUO

The appellant argued, that, the mens rea to commit the offence had not been established.

He contended, that, the totality of the evidence led did not show that he deliberately, or even recklessly and calculatedly, utilized his position to injure the public interest by harming the co-related interests of the importer.

He argued, that, his conduct was genuinely motivated by the noble intention of protecting the public purse, which was prejudiced in the sum of US$195,000 by the previous smuggling activities of the importer.

He further argued, that, the trial court had failed to relate to his uncontroverted testimony that he acted on the instructions of the co-accused to check on the previous consignments that were purportedly smuggled into the country from Musina by the importer.

He called for previous clearance documents from the importer, which he availed to his superiors (the Enforcement Manager, the Technical Manager and the Regional Manager).

His superiors, in turn, invoked bilateral co-operation protocols with the South African Revenue Services (SARS).

The South African Revenue Services (SARS) then supplied ZIMRA with all the requisite customs clearance documents used by the importer to bring the questioned consignments into Zimbabwe.

He argued that these investigations, which commenced with the red flagging of the importer on the night of 23 December 2014, belatedly revealed the misfeasance committed by the importer.

He therefore submitted, that, had the trial court related to his version, it would have found that it passed muster the “reasonably possible true” test and acquitted him of the offence.

Per contra, the respondent contended that the abrogation of ZIMRA processes by the appellant were established.

He argued, that, the colourful prose used by the appellant in impounding the consignment, coupled with absence of detention documents, betrayed his ulterior motive to injure the public interest by harming the importer's interests.

The injured interests were identified as the loss of income that could have accrued to the importer from beer sales during the festive season, and the attendant loss incurred by the importer's failure to use its trailers during the 21 days in question.

The respondent also argued, that, the appellant's contrary assertion that he was motivated by the smuggling allegations could not reasonably rebut the presumption against him that his abridgment of the consignment detention procedures was intended to harm the importer's business interests.

The respondent, therefore, submitted that the appellant was correctly convicted by the trial court.

THE FINDINGS OF THE COURT A QUO

The court a quo made the following findings:

The appellant acted on the instruction of the co-accused to investigate the previous consignments that were alleged to have been smuggled into the country.

Notwithstanding such instruction, he was obliged to issue the requisite detention documents.

His failure, over a period of 21 days, despite the promptings of the clearing agents, established the actus reus of the offence.

His version, that he was motivated by the higher ideal of preserving public revenues, by investigating the purported previous smuggling activities of the importer, could not reasonably possibly be true because “that intention to investigate was not properly documented” nor placed before the investigating officer and the trial court.

He was, therefore, complicit with the co-accused in the unlawful detention of the consignment.

He failed to rebut the presumption that his act or omission was intended to show disfavour to the importer.

All the essential elements were, accordingly, established beyond a reasonable doubt.

In the circumstances, the court a quo confirmed the conviction and dismissed the appeal.

THE GROUNDS OF APPEAL

Aggrieved by these findings, the appellant appealed to this Court on the following grounds:

“1. The court a quo grossly erred and misdirected itself in upholding the conviction of the appellant in the absence of evidence to prove that the appellant had committed the offence.

2. The court a quo erred and grossly misdirected itself in dismissing the appeal against conviction notwithstanding the fact, that, the respondent had failed to place before the court evidence to prove the essential elements of the offence.

3. The court a quo erred and misdirected itself in upholding the conviction notwithstanding that the respondent failed to place before the court evidence to disprove the appellant's case.”

He sought the vacation of the conviction and its consequent substitution by an order upholding the appeal.

THE ISSUE

The sole issue that arises from the three grounds of appeal is whether the court a quo erred in upholding the appellant's conviction.

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, the court a quo erred in upholding the appellant's conviction when the totality of the evidence adduced before the trial magistrate clearly showed that the appellant did not intend to harm the importer in his business but sought to protect public revenue by recovering revenue lost through the alleged previous smuggling activities perpetrated by the importer.

She argued, that, the court a quo failed to give proper regard to the common cause facts of the investigations of the previous liquor imports that the importer was alleged to have smuggled into the country.

She contended, that, the proven existence of these investigations, which investigations constituted part of the appellant's duties, negated the finding that his failure to raise detention documents for the impounded consignment was actuated by an underlying ulterior or dishonest motive.

She, therefore, submitted that the appellant lacked the mens rea to commit the offence.

Per contra, counsel for the respondent submitted that the court a quo did not misdirect itself in upholding the conviction and dismissing the appeal.

He contended, that, the appellant acted in common purpose with the co-accused in impounding the consignment. They both flouted the Zimra procedural requirements to endorse the reasons for the referral to, and issuance of detention documents at the container depot.

He further argued, that, the fact that the appellant accepted the consignment without demur, impounded and further detained it for 21 days without issuing the requisite detention documents, demonstrated that he was acting in cahoots with the co-accused to harm the importer in his business.

He also contended, that, the appellant's failure to avail the internal investigations to the investigating officer showed that he was raising them as an afterthought to ward off his proven intention to harm the importer's interests.

He, therefore, submitted that as the respondent had overwhelmingly established all the essential elements of the offence beyond a reasonable doubt, the court a quo correctly dismissed the appeal.

ANALYSIS OF THE LAW AND FACT

What constitutes proof beyond a reasonable doubt was pronounced by DUMBUTSHENA CJ in S v Isolano 1985 (1) ZLR 62 (S)…, thus:

“In my view, the degree of proof required in a criminal case has been fulfilled. In Miller v Minister of Pensions [1947] 2 All ER 372 (KB), LORD DENNING described that degree of proof at 373H as follows:

'…, and for that purpose, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond 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 that will suffice.'

See Hoffman and Zeffertt: South African Law of Evidence 3rd ed 409-410.”

The approach to be adopted where, as in this case, a reverse onus is prescribed by statute, was enunciated by this Court in a kindred offence of contravening section 4(a) as read with section 15(2)(e)(iii) of the repealed Prevention of Corruption Act [Chapter 9:16] in S v Chogugudza 1996 (2) ZLR 28 (S) at 42D as follows:

“The actus reus of the offence of contravening section 4(a) of the Prevention of Corruption Act having been proved by the State, it was for the appellant to displace the presumption by satisfying the trial court that his purpose of showing favour was legitimate; that, in doing what he did, he had acted with an innocent state of mind.

It was not for him to establish that his evidence on this aspect was necessarily true; only that, on a preponderance of probabilities, it was true: see S v Ndlovu 1983 (4) SA 507 (ZS) at 510D-G; Miller v Minister of Pensions [1947] 2 All ER 372 (KBD) at 374A-B.”

The Court had earlier on emphasized at 34E that:

“The plain language of section 15(2)(e) mandates that the presumption will stand unless proof to the contrary is adduced by the public officer, who is the accused. It is a presumption rebuttable at his instance. It imposes a legal burden upon him which must be discharged on a balance of probabilities. It is not discharged merely by raising a reasonable doubt.”

The relevant provisions under which the appellant was charged provide that:

“174 Criminal abuse of duty as public officer

(1) If a public officer, in the exercise of his or her functions as such, intentionally -

(a) Does anything that is contrary to or inconsistent with his or her duty as a public officer; or

(b) Omits to do anything which it is his or her duty as a public officer to do;
for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.

(2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.”…,.

The key word found in subsection (1) of section 174 of the Criminal Law (Codification and Reform) Act is “intentionally”.

It constitutes the mens rea of the offence of criminal abuse of office.

It further demonstrates, that, the presumptive proof reposed in subsection (2) does not create a strict liability offence.

The onus to establish, beyond a reasonable doubt, the actus reus of the offence, which is prescribed in the opening words and in paragraphs (a) and (b) of section 174(1) of the Criminal Law (Codification and Reform) Act, lies on the State.

The presumptive proof casts a legal onus on the accused person to show, on a balance of probabilities, that he did not have the intention of favouring or prejudicing any person impacted by his act or omission.

Thus, the actus reus, which must be established by the State, is that:

(a) The accused person is a public officer;

(b) Who, in the course of his or her duties or functions;

(c) By commission or omission, breached his or her duties or functions.

In its wisdom, the legislature cast the legal burden of disproving intention, on a balance of probabilities, on an accused person: see S v Chogugudza 1996 (2) ZLR 28 (S)…,.

Now 'intentionally' is a synonym of 'wilfully' which in the context of the English provision equivalent to our section 174(1) was defined by LORD BUNGHAM in R v G [2003] UK HL 50 to mean “deliberately doing something which is wrong, knowing it to be wrong, or with reckless indifference as to whether it is wrong or not.”

The nature and scope of the intention cast on the accused person has best been described in two foreign cases cited by TSANGA J in S v Taranhike & Ors 2018 (1) ZLR 399 (H)…,.

The first is the English case of R v Dytham [1979] 2 QB 722, in which the Court stated that:

“The neglect must be wilful and not merely inadvertent, and it must be culpable in the sense, that, it is without reasonable excuse or justification; the misconduct must be calculated to injure the public interest so as to call for condemnation and punishment.”

The second is the Australian case of Northern Territory Australia v Mengel (1995) CLR 307, which held that:

“It is the absence of an honest attempt to perform the functions of the public office that constitutes abuse of office. Misfeasance in public office consists of a purported exercise of some power or authority by a pubic officer otherwise than in an honest attempt to perform functions of his or her office whereby loss is caused to the plaintiff. Malice, knowledge, and reckless indifference are the states of mind that stamp on a purported but invalid exercise of the power the character of abuse or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.”

It is against this backdrop that the sole issue for determination in this appeal falls to be decided.

It is however trite, that, an Appeal Court may only interfere with a subordinate court's factual findings or the exercise of its judicial discretion on established grounds of irrationality or in circumstances where that court has misdirected itself on the facts by failing to appreciate the import of the fact or by making a finding that is contrary to the evidence actually presented: see RBZ v Granger & Anor SC44-15…,.

At p161 of the appeal record, the court a quo dismissed the appellant's investigation version and his appeal thus:

“From his evidence, the appellant said he engaged his superiors and they agreed to send someone to South Africa to investigate the importer. If this was indeed the case, at least the investigating officer should have been favoured with this information. No evidence was placed before the court about this investigation. In any event, the appellant was seized with the matter, obviously he had access to all the documentation in respect of the truck, save for the reasons for impounding it. The appellant was well aware of the non-documentation and was complicit in the unlawful detention of the truck.

The issue that arises is whether his conduct was just an oversight or the conduct constitutes an abuse calculated to disadvantage the truck owner.

There was evidence of the abusive conduct of the appellant towards the truck owner and the clearing agents.

This kind of offence is sometimes difficult to connect the dots, because the public official would just sit on work in order to induce a consideration.

In this case, the appellant could not possibly take over an investigation of an impounded truck when in the first place the truck was not properly impounded.

The Magistrates reasons for convicting the appellant are very clear.

The inconsistencies highlighted by the appellant are of no consequence, they do not go to the substance of the conviction.”

Section 174(2) of the Criminal Law (Codification and Reform) Act required the appellant to lead evidence of his state of mind at the time he impounded the goods.

He asserted the common cause fact, that, no instructions for a search, examination, and clearance were ever relayed to the container depot by the co-accused. He testified that no physical examination of the consignment was ever carried out at the container depot.

His version was confirmed by two common cause facts:

(i) The first was that there was no record of such an examination in the inspection register held at the container depot.

(ii) The second was that one of his subordinates, who was alleged by Isaac Musharu (the driver) and the clearing agent to have searched the consignment at the container depot, denied ever doing so in his statement to the police.

The appellant's version on this aspect was controverted by Isaac Musharu (the driver) and the clearing agent who said the examination was held on 24 December 2014.

These two State witnesses contradicted each other in a material respect.

Isaac Musharu (the driver) stated that the examination commenced at “around 4pm”. The clearing agent stated that it took place between 10am and 2pm.

A further complication in the State evidence was that the Bulawayo based clearing agent testified, that, these two witnesses, contrary to their respective evidence, had told him that a minimum of four (4) searches had been conducted at the container depot on that day.

The court a quo held that these discrepancies “were of no consequence, they did not go to the substance of the conviction.”

In my view, the discrepancies were material in that they confirmed the truthfulness of the appellant's version and discredited the contrary version of the State's witnesses.

The discrepancies, contrary to the finding a quo, also went to the root of the conviction.

The appellant was convicted for detaining the consignment without probable cause and without issuing the requisite detention documents.

The absence of probable cause was premised on the fact, that, he continued to detain the consignment after it had purportedly been cleared by the physical examination.

The trial court and the court a quo then ascribed an ulterior motive to harm the importer's interests to his failure to proffer such a probable cause.

Counsel for the appellant contended, that, the appellant established, on a balance of probabilities, that he did not have the requisite intention to harm the importer in his business. On the other hand, counsel for the respondent made the contrary contention, that, as the appellant had failed to proffer any reasonable justification for his admitted failure to issue the requisite detention documents, the conviction was un-impeachable.

The justification proffered by the appellant was that he detained the consignment pursuant to the instruction endorsed on the consignment note by the co-accused for him to investigate the smuggling allegations that had been raised against the importer in the electronic clearance system.

Counsel for the appellant argued, that, the uncontroverted testimony of the co-accused to the same effect negated the ulterior motive ascribed to the accused by the trial court and confirmed by the court a quo.

The uncontroverted testimony of the co-accused, which both the trial court and the court a quo did not interrogate, was that he referred the consignment to the container depot for investigation after the importer had been red flagged for smuggling by the electronic clearance system.

He caused the endorsement of the referral details into the “Referred to the Container Depot Register” by his subordinate, one Eric Gorondondo.

He relied on the provisions of section 201 of the Customs and Excise Act for his actions. The section stipulates that:

“201 Liens and preferences

(1) The correct amount of duty payable in respect of any goods shall, from the time when it should have been paid, constitute a debt due to the State by the person concerned and shall, at any time after it becomes due, be recoverable in a court of competent jurisdiction by proceedings in the name of the Commissioner, and any goods in a bonded warehouse or in the custody of the Department and belonging to that person, and any goods afterwards imported or entered for export by the person by whom the duty is due, shall, while still under the control of the Department, be subject to a lien for such debt and may be detained by the Department until such debt is paid, and the claims of the State shall have priority over the claims of all persons upon the said goods of whatever nature and may be enforced by sale or other proceedings if the debt is not paid within three months after the date upon which it became due.”…,.

Section 201(1) of the Customs and Excise Act [Chapter 23:02] permits a customs official to detain the consignment, which is subsequently imported by an indebted importer and is still under the control or custody of the Commissioner of Customs and Excise, for the purpose of exercising a lien upon it.

This provision imbues a customs officer with the power to detain properly cleared consignments of an importer which are in a customs area for unpaid duty incurred in a prior consignment.

The underlying reason for conferring such a power is to ensure that every importer pays his or her or its correct duty.

It is that underlying reason that prompted the co-accused and the appellant to act.

That the importer was aware of the reason for the detention of his consignment was confirmed by the testimony of its clearing agents.

They were apprised of the reason by the appellant a day after he impounded the consignment.

Indeed, in its letter of 27 December 2014, which was addressed to the Regional Manager, the importer disputed the smuggling allegations, enclosed the requested previous customs clearance documents, and implored the appellant to release the consignment.

It was also common cause, that, the release of the consignment, after the consensual High Court order was issued, was conditional upon the further submission of more of the previous customs clearance documents connected to the alleged smuggling activities.

Notwithstanding the investigation officer's failure to seek documentation on the smuggling investigation, the totality of the evidence adduced at the trial showed, on a balance of probabilities, that such an investigation existed.

These factors clearly showed, that, the appellant's failure to issue the requisite detention documents was motivated by the higher ideal of recovering lost revenue, rather than some amorphous and speculative ulterior motive.

I agree with counsel for the appellant, that, the appellant discharged the onus on him to show, on a balance of probabilities, that he did not bear any ill-intention to disfavour the importer.

Consequently, the State failed to establish that the appellant had the mens rea to commit the offence.

In the premises, all the grounds of appeal are meritorious and the appeal ought to succeed.

DISPOSITION

The co-accused did not appeal against his conviction or sentence to the court a quo or to this Court. His conviction has come to our attention in the present appeal.

This is a proper case for the exercise of this Court's review powers that are encapsulated in section 25(2) of the Supreme Court Act [Chapter 7:03].

The trial magistrate made the following findings:

The co-accused intercepted, inspected, and did not find any anomalies with the consignment. He did not clear the consignment but referred Isaac Musharu (the driver) and the clearing agent, Christian Magwali, to the container depot, ostensibly for an accentuated physical verification of the consignment.

He did not endorse the reason for the referral on the back of the bill of entry. His failure resulted in the detention of the consignment for 21 days at the container depot.

The failure to endorse on the back of the bill of entry was inconsistent or contrary to his duties as a public officer. He failed to give a reasonable justification for his conduct. His conduct was prejudicial to the importer who failed to sell the consignment during the festive season.

He was, therefore, guilty as charged.

The trial court failed to relate to the evidence which was favourable to the co-accused.

The clearing agent testified, that, the scanning unit was the last checkpoint for clearing the consignment. This was in consonance with the denial of the co-accused that he ever intercepted the consignment and his insistence that he dealt with the consignment at his workstation. He was, after all, the night shift supervisor.

He instructed his subordinate, Eric Gorondondo, to enter the reason for the referral in the “Referred to Container Depot Register” and on the road manifest that night.

The Regional Manager testified, that, an endorsement could only be made on the back of a bill of entry if the electronic clearance system was down.

The impact of this evidence was that endorsement on the back of the bill of entry was not a mandatory requirement.

The Regional Manager further testified, that, he did not check the electronic clearance system, or any registers, other than the inspection register at the container depot.

The testimony of the co-accused on what he did at his workstation was, therefore, uncontroverted.

That the co-accused referred the consignment to the container depot to facilitate the investigation of a possible smuggling racket engineered by the importer was confirmed by the appellant.

The co-accused, further, testified that his actions were motivated by the provisions of section 201 of the Customs and Excise Act. He believed the consignment could be held as a lien pending investigations of the smuggling allegations.

That he could have misconstrued the import of section 201 of the Customs and Excise Act is irrelevant.

His belief negated the finding that he was actuated by an ignoble motive to injure the importer in his business interest. He ought to have been acquitted.

The conviction and consequent sentence will therefore be set aside.

Accordingly, the following order will issue:

1. The appeal be and is hereby allowed.

2. The judgment of the court a quo is set aside and substituted with the following:

“The appeal against conviction and sentence be and is hereby allowed.”

3. Pursuant to the provisions of section 25 of the Supreme Court Act [Chapter 7:03], the conviction and consequent sentence imposed upon Obert Tafadzwa Charamba at Beitbridge Magistrate's Court, on 9 November 2015, be and is hereby set aside.

SC07-11 : THE ATTORNEY-GENERAL vs ROY BENNETT
Ruled By: CHIDYAUSIKU CJ

An Appellate Court is in no better position to assess the demeanour of a witness. It is only on those rare occasions where the trial court's finding is not supported by the record that an Appellate Court interferes with such a finding.

SSC52-19 : ZIMBABWE OPEN UNIVERSITY vs PERPETUAL NDEKWERE
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

At the conclusion of the hearing of an appeal noted to the Labour Court by the appellant, the Labour Court upheld the point in limine taken by the respondent, that, the appeal was improperly before the court as it sought to impugn findings of fact rather than law.

As a consequence of that finding, the court a quo dismissed the appeal with costs.

It is against that order that the appellant has now approached this Court seeking an order setting aside that finding and remitting the matter to the court a quo for a determination of the matter on the merits.

FACTUAL BACKGROUND

The respondent was employed by the appellant as its Finance Director. Although both the arbitrator and the court a quo say that she was employed on fixed term contracts which were periodically renewed, the record, in fact, shows that she was employed in that capacity on a fixed three-year contract which commenced on 8 June 2009 and was set to expire on 7 June 2012.

For the duration of the contract period, either party had the right, in terms of the contract, to terminate the contract upon giving six months notice in writing of such termination.

On 27 March 2012, less than three months before her contract was set to expire, the appellant's Human Resources Committee held a meeting at which all the members present (excluding the respondent, who had been asked to recuse herself) recommended that her contract be renewed, subject to approval by the Council of the appellant.

A special executive committee of the Council met two days later and also “strongly and unanimously” recommended that the respondent's contract of employment as Finance Director be renewed for a further period of three years, on the same terms and conditions, subject to approval by the Minister.

On 7 June 2012, the date on which her contract was set to expire, the Vice-Chancellor of the appellant, a Dr P. Kurasha, wrote to the respondent advising that the Council of the appellant had decided to appoint her in an acting capacity from 9 June 2012 “until further notice”.

Pursuant to that communication, the respondent continued offering her services as Finance Director until 27 June 2013, over a year later, when she received a letter from the chairman of the Council.

The letter advised that the Council was now in a position to make a substantive appointment of a Finance Director.

In the letter, the chairman gave the appellant notice of termination of her contract of employment, effective 30 September 2013.

It bears mention, at this stage, that, as a matter of fact, the chairman of Council gave her three calendar months notice of the termination of her employment.

The letter also requested that she vacates her office immediately and that she carries out a handover-takeover of assets and records with the Acting Finance Manager.

Unhappy with the sudden turn of events, the respondent lodged a complaint of unfair dismissal with a labour officer.

Having failed to conciliate the dispute between the parties, the Labour Officer (then) referred the matter to an arbitrator to determine whether she had been unlawfully dismissed, and, if that was the case, the appropriate remedy.

In proceedings before the arbitrator, the appellant disputed that the respondent could have entertained a legitimate expectation of her contract being renewed. It argued that the respondent could not rely on a mere recommendation of a committee of the Council.

The appellant also argued, that, the respondent had accepted her termination, and, pursuant thereto, had vacated her office and accepted her terminal benefits.

In his findings, the arbitrator rejected the contention that the respondent had waived her right to appeal.

The arbitrator agonised over the status of the respondent between 7 June 2012 and 27 June 2013 when her employment was formally terminated.

He noted that the acting appointment did not “mention an extension of the fixed term contract…,.; nor does it specify the basis for such acting appointment or the duration of the same.”

He concluded that this was a contract without limit of time as there could not be an employment relationship “on a temporary basis.”

He expressed the view that the nature of the employment relationship that subsequently subsisted between the parties was one of a contract without limit of time.

Notwithstanding that conclusion, the arbitrator proceeded to determine whether the respondent had a legitimate expectation of being re-engaged.

He noted that the position that she had previously occupied had been filled by someone else in an acting position. He concluded, that, the respondent may have had a legitimate expectation of her contract being renewed, taking into account the favourable recommendation made by both the Human Resources Committee and the Special Executive Committee of Council, and the fact that she was appointed to act in the same position, albeit for an indefinite period.

Consequently, he determined that the respondent had been unfairly dismissed and that she should be reinstated to her position without loss of salary or benefits, or, alternatively, that the appellant pays damages in lieu of reinstatement.

PROCEEDINGS BEFORE THE LABOUR COURT

Aggrieved by the above arbitral determination, the appellant appealed to the Labour Court. It did so on a number of grounds of appeal.

As the determination of the Labour Court was predicated on the validity of those grounds of appeal, it is necessary to set these out in full. I cite them verbatim:

“1. The Honourable Arbitrator erred at law in exploring and making a finding on the nature of the contract entered into between the parties with effect from 9 June 2012 when such was not an issue before him.

2. The Honourable Arbitrator erred, grossly, on the facts, in finding that the contract entered into between the parties, with effect from 9 June 2012, was a contract without limit of time. The Honourable Arbitrator's findings in this respect is not supported by any evidence and is so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

3. The Honourable Arbitrator made a finding to the fact, that, the respondent had legitimate expectation of renewal of a contract based on recommendations made during Council meetings.

4. The Honourable Arbitrator erred at law in relying on the proceedings and resolutions in those meetings.

The Honourable Arbitrator erred, grossly, on the facts, in finding that respondent was legitimately entitled to expect the renewal of her contract. The Arbitrator's findings in this regard are so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

4.1 The Honourable Arbitrator also made a finding that the fact that the Executive Committee made its decision subject to the approval of full Council or the Minister did not deny respondent a legitimate expectation since her appointment on 7 June 2012 was not blessed with Council or Ministerial approval.

The Arbitrator's finding in this regard is grossly unreasonable as:

(a) Whether or not the consent of Council or the Minister was asked for and/or obtained for the 7 June 2012 appointment was never an issue; in any event, the 7 June 2012 appointment was a temporary appointment (sic) while the appointment allegedly expected is a three (3) year appointment;

(b) Further and any event, it is the employer's prerogative to choose which appointment to subject to approval and which not. Once one is informed that a specific appointment is subject to approval, then, without such approval, no legitimate expectation can arise.

(c) The Arbitrator also made a finding that a year's delay in obtaining Council or Ministerial approval entitled respondent to legitimately expect that her three year (3) fixed term contract will be renewed. This finding by the Arbitrator is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive to such a decision.

4.3 The Arbitrator also held that no proof of a negative decision from the decision maker was furnished, and, as a result, respondent was entitled to legitimately expect that her contract will be renewed. The Arbitrator's decision in this respect is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive at such a decision.”

In its submissions a quo, the appellant stated as follows:

1. First, that the arbitrator made a finding on an issue that was not before him and in respect of which no evidence had been led. In particular, the appellant submitted that the nature of the contract that subsisted between the parties, from 7 June 2012, was not an issue before the arbitrator, and, therefore, his finding that there existed a contract without limit of time was irregular.

2. Second, that the crux of the matter revolved around the question of legitimate expectation. The recommendation to extend her contract had not been communicated to her. It had been made by the appellant's Executive Committee of Council, not to her, but to the appellant. The respondent could not, therefore, rely on a representation that was never made to her. In any event, no representation was ever made by the appellant so as to induce her to legitimately expect that her contract was to be extended.

3. Third, the recommendation made by Council was subject to acceptance or rejection by the appellant. That recommendation was therefore “not clear, unambiguous, and devoid of relevant qualifications” as required by the law.

4. Lastly, the submission was made that criminal conduct, involving abuse of trust, had been unearthed in the finance department, and the respondent's innocence was therefore questionable. She could not therefore have expected her contract to be extended given that circumstance.

In her submissions before the Labour Court, the respondent argued that the arbitrator had correctly found that she had a legitimate expectation to be re-engaged as Finance Director. It being common cause that another person had been engaged in her place, she had therefore been unlawfully dismissed.

The respondent also took the point, that, the appeal had been noted against findings of fact and not law. No real question of law had been ventilated.

She therefore prayed that the appeal should fail on that basis and that costs be awarded in her favour.

At the hearing of the appeal, the court a quo, quite correctly, decided to determine the point in limine raised by the respondent, that the appeal was not properly before the court as it did not implicate any issues of law.

The first and second grounds of appeal were abandoned by the appellant at the commencement of the hearing. The court a quo accordingly confined its enquiry to the remaining grounds of appeal.

The court found, that, the third ground of appeal raised a factual finding since no allegation had been made that the arbitrator's reasoning was so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided would have arrived at such a conclusion.

It also found the fourth ground to have been similarly afflicted.

Whilst in this ground the appellant had alleged that the arbitrator's finding had been grossly unreasonable, the court found, that, on a perusal of the record, it was apparent that the issue whether or not the recommendation had been communicated to her had not been raised before the arbitrator. It accordingly found, that, it was improper for the appellant to have raised this issue for the first time on appeal; the issue raised before the arbitrator having been whether the respondent could rely on a recommendation made by a Committee of Council to found a claim for legitimate expectation.

The court also considered the submission by the appellant, that, the Executive Committee of Council had made its decision to recommend the re-appointment of the respondent subject to approval by the full Council and the Minister, and that, in the circumstances, no legitimate expectation could have arisen.

The Court accepted the respondent's submission, that, a legitimate expectation can arise from a representation made by, or the conduct of, the employer.

It determined, that, the placement of the respondent in an acting position, coupled with the recommendation by the Executive Committee of Council that her contract of employment be extended, gave rise to that expectation. Therefore, the arbitrator could not be faulted for relying on previous conduct by the appellant, regard being had to the fact that the two meetings that recommended her re-engagement were held before she was re-appointed in an acting capacity.

It found that the arbitrator's reasoning in this regard could not be termed outrageous or irrational.

The court also considered the attack against the arbitrator's finding, that a year's delay in obtaining a determination from the Council or the Minister, on the recommendations previously made, was a basis for legitimate expectation.

It considered, that, in the absence of a further averment that the finding was so grossly unreasonable that no person properly applying his mind to the fact would have arrived at such a decision, the attack remained one on a factual finding.

Lastly, the court a quo found that the attack against the finding by the arbitrator that “no proof of a negative decision from the decision maker was furnished” and, consequently, that the respondent legitimately expected that her contract would be renewed, did not elaborate in what way the finding was grossly unreasonable. Merely stating that the decision was grossly unreasonable does not suffice.

The court accordingly found, as it had done with the other grounds, that the appeal was improper as it sought to impugn factual findings.

Having found that all the grounds of appeal were impugning factual findings, the court a quo upheld the point in limine. Consequently, it dismissed the appeal with costs.

Hence the appeal to this Court.

GROUNDS OF APPEAL

The appellant seeks an order setting aside the judgment of the court a quo and remittal of the matter to the Labour Court for a determination of the dispute between the parties on the merits.

“1. The court a quo erred in finding that the grounds of appeal relied upon by appellant did not raise points/issues of law either in the primary or secondary sense of the expression.

2. The court a quo erred in finding that grounds of appeal which attack factual findings made by a Labour Arbitrator fail by that circumstance to disclose points/issues of law as required by statute.

3. The court a quo erred in failing to appreciate the distinction between the validity of grounds of appeal, on the one hand, and the sufficiency thereof, on the other, and, so erred in finding that there were no valid grounds of appeal based on the view it took to the effect that the grounds were meritless.

4. Having found, at any rate, that there were no valid grounds of appeal, the court a quo erred in -

(a) Relating to the substantive issues raised in the grounds which it had found to be non-existent; and

(b) In dismissing the appeal instead of striking it off the roll.

5. Alternatively, the court a quo erred in finding that the Arbitrator had properly come to the conclusion that respondent had a legitimate expectation of continued employment with appellant and that appellant's failure to so employ her constituted unfair dismissal.”

APPELLANT'S SUBMISSIONS ON APPEAL

In its submissions before this Court, the appellant has argued, that, in large part, the determination of the court a quo was predicated on a finding that the grounds of appeal had no merit.

This, the appellant submitted, was an incorrect approach.

The court a quo was limited to an assessment of the phraseology of the grounds of appeal, without reference, at that stage, to the merits. Instead, the court assessed the merits of the grounds of appeal in order to determine whether or not they properly raised issues of law. It was for that reason that the court a quo remarked at one stage that it found “…, the arbitrator's reasoning cannot be termed outrageous or irrational.”

The merits were not a relevant consideration in determining the validity of the grounds of appeal.

Therefore, the court a quo conflated the two processes, namely, the assessment of the validity of the grounds of appeal and their sufficiency.

Further, the appellant submitted, that, if, indeed, there were no valid grounds of appeal before the court a quo, the court should have found that there was no valid appeal before it. Consequently, it should have simply struck the matter off roll instead of dismissing it.

A dismissal would ordinarily suggest that the matter was considered on the merits and was then dismissed.

The appellant has further argued, that, there was no legitimate expectation that the contract would be renewed. No evidence of the expectation was given.

Moreover, the resolution on which the respondent's claim was predicated was never officially communicated to her by the full Council of the appellant. In any event, the resolution remained a mere recommendation which meant that Council was at liberty either to accept or reject it.

Lastly, the appellant submitted, that, having found that the respondent was not on a fixed term contract, but, was on a contract without limit of time, the question of legitimate expectation did not, therefore, arise.

Since the acting appointment did not provide for the duration of the contract, she became a permanent employee whose tenure could be terminated on notice as enunciated in the case of Nyamande & Anor v Zuva Petroleum SC43-15.

The arbitrator could not, therefore, apply section 12B of the Labour Act which applies to a person on a fixed term contract.

RESPONDENT'S SUBMISSIONS ON APPEAL

In her response, the respondent has submitted, that, the court a quo was correct in finding that the grounds of appeal were impugning factual findings and that they were, therefore, not valid.

It is not sufficient, in formulating grounds of appeal, to merely assert that a judicial officer erred at law. The particular mistake of law should be stated, and, unless substantiated, such a ground remains one of fact.

The respondent further argued as follows:

Since the sole issue for determination before the court a quo was whether the arbitrator's findings on the issue of legitimate expectation could be impugned, that issue could only be dealt with by considering the merits.

In any event, a court can interrogate the record of the proceedings in order to resolve the question whether there is substance to the grounds themselves. Having found that the grounds raised factual issues, and that the grounds had no merit, the court a quo correctly dismissed the appeal.

Further, the court a quo was correct in finding that the respondent had a legitimate expectation that her contract would be extended.

Lastly, the submission made by the appellant, that, the contract was terminated on notice was not an issue before the court a quo and cannot, therefore, be an issue before this Court.

ISSUES FOR DETERMINATION

On a consideration of the record of the proceedings, and the submissions made by both parties before this Court, it seems to me that three issues arise for determination by this Court:

(i) The first relates to the correct approach in determining whether a ground of appeal raises an issue of law, and whether, in so determining, it is permissible for a court to have regard to the merits of the matter in order to make that determination.

(ii) The second is whether the grounds of appeal before the Labour Court raised questions of law, i.e. whether they were valid grounds of appeal.

(iii) The third is whether the court a quo was correct in dismissing the appeal once it found, as it did, that the grounds of appeal were not valid.

I consider each of the issues in turn.

DETERMINATION OF THE VALIDITY OF GROUNDS OF APPEAL

There is a dispute in this matter on the correct approach by a court in determining whether a ground of appeal raises an issue of law. There is, therefore, need to clarify the correct approach in assessing whether a ground of appeal complies with the legal requirement that it must be predicated on an issue of law.

The term “question of law” is used in three distinct, though related, senses:

(i) First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit;

(ii) Second, it means a question as to what the law is; and

(iii) Third, any question which is within the province of the judge instead of the jury or assessors;

See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S)…,.; Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10.

Used in the three related senses referred to above, the term causes no difficulty.

It is, however, used in a fourth sense, that is: where the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person, who has applied his mind to the question to be decided, could have arrived at such a conclusion.

The nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.

A serious misdirection on the facts amounts to a misdirection in law: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC)…,.

The dispute in this case centres around how an appellant, who alleges a misdirection on the facts, should formulate such a ground in his Notice of Appeal.

To answer this question, I proceed to look at cases previously decided by this Court on the subject.

In Reserve Bank of Zimbabwe v Granger & Anor SC34-01, MUCHECHETERE JA remarked as follows:

“An appeal to this Court is based on the record. If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person, who applied his mind to the facts, would have arrived at such decision. And a misdirection of facts is either a failure to appreciate a fact at all, or a finding that is contrary to the evidence actually presented….,.”

In Zvokusekwa v Bikita Rural District Council SC44-15, this Court further added:

“(22)…,. The remarks in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying, that, to constitute a point law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person, properly applying his mind, would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form….,.

What is important, at the end of the day, is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.”

The pertinent question in the present case is this: in determining whether a ground of appeal raises an issue of law, should a court be confined to the wording of the ground of appeal only or should it, additionally, have recourse to the record or the merits of the case?

In Chinyange v Jaggers Wholesalers SC24-04 GWAUNZA JA…, writing for the court, stated at page 2 of the cyclostyled judgment:

“…,. The appellant must, in other words, not only allege, but, also show, that the Labour Court misdirected itself on a point of law.”

At page 3, the learned judge continued:

“The appellant has not alleged, nor shown, that the Labour Court misdirected itself, nor that such misdirection, being based on findings of fact, was so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.”

In Mutsuta and Anor v Cagar (Private) Limited SC47-09 SANDURA JA stated at page 6 of the cyclostyled judgment:

“Applying the principles set out in the three cases cited above, I have no doubt in my mind that the appeal raises questions of law. There are allegations in the grounds of appeal that the Labour Court committed misdirections on the facts which are so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. The appeal is, therefore, properly before the court.”

In Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, this Court remarked at page 5 of the judgment:

“The first ground of appeal is that the Labour Court erred on a question of law in holding that the disciplinary committee was improperly constituted. It is the respondent's submission that this question is one of fact and not law. I agree with the respondent's submission in this regard.”

And at page 7:

“There is no suggestion by the appellant that the court a quo misdirected itself on the facts in coming to the conclusion that the committee was not properly constituted and that such misdirection constitutes a question of law. I would agree with the respondent that this ground of appeal raises a question of fact and not law.”

It is correct, that, in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, the impression was created that a court can have regard to the merits in order to determine the validity of a ground of appeal.

It is clear, however, on a proper reading of the case, that, in fact, the court determined the validity of the grounds of appeal based only on the specific allegations made in the grounds of appeal and not the merits of the matter.

Everything considered, therefore, the correct approach, in my view, is that, in determining whether a ground of appeal raises an issue of law, a court will confine itself to the wording of the ground of appeal only and not to the merits of the matter.

The merits of the matter only become relevant if a ground of appeal is found to be valid.

Whether or not an appellant's case has merit and whether or not the appeal should succeed are issues to be determined separately - and only after a finding on the validity of the grounds of appeal.

A ground of appeal which attacks findings of fact must, therefore, not only allege that the lower court misdirected itself on the facts, but, must go further and show how that misdirection came about.

Merely alleging a misdirection, without further substantiation, would not be enough, as the attack would remain one against a factual finding.

In other words, in alleging a misdirection on the facts, the ground of appeal must also show in what way those findings of fact are irrational.

To the extent, therefore, that the decision of this Court in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10 may have created an impression to the contrary, it does not reflect the correct approach and should therefore, to that extent, not be followed.

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

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