DISTRIBUTABLE (39)

Judgment No. SC 44/04

Crim. Appeal No. 353/02

(1) SAMUEL CLEOPAS GADZIKWA (2) PETER ZVINGOBE v

THE STATE

SUPREME COURT OF ZIMBABWE

SANDURA JA, CHEDA JA & GWAUNZA JA

HARARE, MARCH 8, 2004

J Dondo, for the appellants

R K Tokwe, for the respondent

GWAUNZA JA: The two appellants, who are regular members of the Air Force of Zimbabwe, appeared before the General Court Martial facing a charge of stealing State property contrary to paragraph 18(a) of the First Schedule to The Defence Act, [Chapter 11:02]. They were found guilty as charged and each sentenced to –

(a) reduction in ranks to AC;

(b) discharge with ignominy from the Zimbabwe Defence Forces; and

(c) three years’ imprisonment with labour.

The appellants were aggrieved at their conviction and sentence and now appeal against both.

At the hearing of the appeal, the respondent, through its counsel, Mr Tokwe, conceded that there was merit in the appeal against conviction. He submitted as follows on page 3 of the respondent’s heads of argument:

“It is also respectfully submitted that the total sum of the evidence adduced had its own shortcomings and imperfections which certainly warranted the appellants to be given the benefit of the doubt and also that there was insufficient evidence to find them guilty as charged.”

After hearing both counsel, and being satisfied as to the correctness of the concession made by the respondent, we quashed the convictions, set aside the sentences and directed that a warrant for the liberation of the appellants be issued.

We now give the full reasons for that decision.

The allegations against the appellants were that on dates unknown to the prosecutor but between September 1999 and May 2001, and while on assignment for the construction of chalets in Kariba, the two unlawfully, and with intent to steal, stole certain building materials valued at $372 940. The building materials belonged to the State.

A number of witnesses gave evidence for the State in the proceedings a quo. The appellants aver, in the light of the evidence of these witnesses, that the State failed to prove beyond reasonable doubt that the appellants were guilty of the offences with which they were charged. It is contended, for instance, that the evidence of one Caesar Kapungu was only to the effect that he had assisted in the loading of two windows and one door frame on to the vehicle. The items, it was averred, had been found not to be the type required for the job at hand, and had thereafter been replaced with the correct items.

The evidence before the Court shows the appellants are correct in the following other assertions:

(a) that the second witness whom the State was forced to impeach exonerated the appellants in respect of the charges they were facing;

(b) that State counsel persistently put leading questions to the witnesses;

(c) that the evidence of the State witnesses was largely hearsay evidence, making it evident that they had no independent knowledge of the appellants’ alleged theft of the materials in question (for instance no evidence was led from one Crag Ncube who was alleged to have purchased bricks from the appellants);

(d) that no basis was established for the conclusion by the respondent that the items in question were stolen, much less by whom;

(e) that even though the charges levelled against the appellants were expressed in specific terms it was not clear, given that no records were kept of the supplies at the site, how the quantities cited in the charges had been arrived at; and lastly

(f) that the trial was conducted in all respects as if the onus lay on the appellants (as the accused persons) to prove their innocence beyond reasonable doubt when it should have been the State proving the guilt of the appellants beyond any reasonable doubt.

In support of the last contention, the appellants have cited, quite correctly in my view, the following statement of the law enunciated by GREENBERG J in R v Difford 1937 AD 370 at 373:

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

Section 56 of the Defence Act [Chapter 11:02] enjoins a Court Martial “in the trial of any charge” to observe the same law that is in force in criminal proceedings in the civil courts as to –

(a) the onus of proof;

(b) the sufficiency or admissibility of evidence;

(c) the competency, compellability, examination and cross-examination of witnesses; and

(d) any matter of procedure.

In violation of this requirement, I find on the evidence before me, that the proceedings in the court a quo were characterised by serious violations of some fundamental rules governing the conduct of criminal trials. Both counsel are agreed these included the admission of hearsay evidence, and the asking of leading questions.

It is evident there was uncertainty as to the type and exact quantities of the materials allegedly stolen by the appellants. The prosecutor in the court a quo confirmed this fact during his closing submissions. Firstly, in making reference to Annexure “A”, which listed the various items supposedly stolen, the prosecutor enumerated types and quantities thereof that were markedly different from what was tabulated in the original list appended to the charge sheet. For instance, while the original list was specific in terms of measurements, quantities and types, the items enumerated by the prosecutor had such notations as “the number is unknown” and “the width is unknown.”

Secondly the prosecutor noted as follows on page 154 of the record:

“Indeed it turned out in the course of the trial that the prosecutor had understated the number of bags so stolen and overstated on the number of the C2H window frames as well as that of the D11H window frames. Right now it is no longer ascertainable how much in terms of each item described at Annex “A” was actually stolen, nor is it certain any longer whether no other building materials, especially the asbestos sheets from the demolished Chalets, were also stolen … .”

Despite this uncertainty in the State case, which the court a quo could not have failed to appreciate,(its attention thereto having been drawn by none other than State counsel), the appellants were convicted of theft of the specific building materials listed in Annexure “A”, which materials were given the specific value of $372 940. If, as the appellants allege, no records of the building materials used for the project was kept, it becomes unclear how it was established not only that specific items had been stolen, but also the quantities and in respect of some, the measurements thereof.

The appellants denied they had stolen any of the materials in question. They gave an explanation which the Judge Advocate summarised as follows at page 183 of the record:

“… the two accused both took the witness’ stand and gave evidence on their own behalf after their application for discharge at the close of the State case was dismissed by the court. The accused however, admit in their defence that indeed those materials were removed from the construction site. Firstly, they submit that one door frame and two window frames were returned to Manyame Air Base after they were found unsuitable for the building plan. Secondly, they submit that on various occasions, they took bags of cement from the construction site to Zimpat because they would have borrowed it from there after theirs had run out of supply. They submit they had developed good relations with Zimpat. Thirdly, they submit that indeed building materials in the form of four rolls of damp proof course and four rolls of brickforce were removed from the site and given to Mr Makore the builder who had loaned these items to them after they had run out of supplies.”

The Judge Advocate noted that the said Makore, who was one of the defence witnesses, testified that he did loan four rolls of brick force and four rolls of damp proof course to the first appellant who needed to use such materials then but that such material had then been re-imbursed to him.

Assessed against the dictum in R v Difford (supra), which is cited above, the explanations given by the appellants cannot, in my view, be said to be improbable or beyond any reasonable doubt, false.

When the uncertainty in the State case, concerning the specifications and quantities of what was allegedly stolen, is balanced against the explanations given by the appellants, as discussed above, one cannot dispute the merit in the appellants’ assertion, and the concession thereto by Mr Tokwe, that the State did not prove the guilt of the appellants beyond a reasonable doubt.

We were accordingly satisfied that a case had been proved for allowing the appeal against the conviction of the appellants and the sentence passed against them. Hence our order for the quashing of such conviction, and the issuance of a warrant for their liberation.

SANDURA  JA: I agree.

CHEDA JA: I agree.

Chinamasa, Mudimu & Chinogwenya, appellants’ legal practitioner

Attorney General’s Office, respondent’s legal practitioner