Judgment No. SC 73/04

Crim. Appeal No. 44A/03

WING COMMANDER JUDGE MASASI v THE STATE

SUPREME COURT OF ZIMBABWE

SANDURA  JA, MALABA JA & GWAUNZA JA

HARARE, JULY 6 & SEPTEMBER 10, 2004

J Dondo, for the appellant

T Shamuyashe, for the respondent

SANDURA  JA: The appellant was charged with contravening para 18(a) of the First Schedule to the Defence Act [Chapter 11:02] (“the Act”), the allegation being that during the period extending from July 2000 to September 2000, he stole 6 000 red standard bricks, two cubic metres of quarry stones and one roll of brickforce wire, all belonging to the respondent. He was a regular commissioned officer of the Air Force of Zimbabwe (“the AFZ”).

On 10 December 2002 he appeared before a General Court Martial at the Field Air Force Base and pleaded not guilty. However, he was subsequently found guilty as charged after a trial had been conducted. He was sentenced to two years’ imprisonment with labour. His rank was reduced to that of an aircraftsman and he was cashiered from the Zimbabwe Defence Forces. In addition, it was ordered that the sum of $118 284.00, being the estimated value of the stolen property, be recovered from his terminal benefits. Aggrieved by that result, he appealed to this Court against conviction and sentence.

At the hearing of this appeal, Mr Shamuyashe, who appeared for the respondent, conceded that the appellant should not have been found guilty of stealing one roll of brickforce wire because that theft was not established by the evidence. In addition, he conceded that in view of the fact that the value of the stolen property could not be ascertained with any degree of certainty, the order that the sum of $118 284.00 be recovered from the appellant’s terminal benefits should not have been made. In my view, both concessions were properly made.

I now wish to consider whether the appellant was properly convicted of stealing 6 000 bricks and two cubic metres of quarry stones. The State relied upon the evidence of six witnesses.

The first witness was Sergeant Petros Ellington (“Ellington”), the investigating officer in this case. His evidence was as follows. At the relevant time he was a member of the Zimbabwe Military Police (“the ZMP”) and had been a member of the ZMP for about twelve years.

In April 1998 the Ministry of Local Government and National Housing, after completing the construction of the first phase of the AF90 flats (“the flats”) at Manyame Air Base (“the base”), handed over the remaining building materials to the AFZ which was to proceed with the next phase of the construction. The building materials included about 30 000 red standard common bricks, about 20 000 red rustic face bricks, and some quarry stones whose quantity Ellington could not estimate.

In the course of investigating the allegations against the appellant, Ellington recorded statements from various witnesses. In cross-examination, he admitted that at the relevant time the bricks at the base were stolen by various officers, and that when the investigation started in September 2001 there were no bricks left, although a heap of quarry stones was still at the base at that time. In addition, he admitted that a number of officers had been prosecuted for stealing some of the building materials, and that some were still to be prosecuted for theft.

When Ellington was asked how he had calculated the total number of bricks stolen by the appellant, he said that he had added up the figures given to him by the members of the Airforce (“the soldiers”) from whom he had recorded statements and who had loaded the bricks onto the truck, acting on the appellant’s instructions.

The second witness was Sergeant Constantine Muzanenhamo (“Muzanenhamo”), whose evidence was as follows. He had been a member of the AFZ for sixteen years and in the year 2000 was attached to the 201 Squadron.

On the day in question, Muzanenhamo went to work as usual at the 201 Squadron. An SF911 truck arrived, being driven by Sergeant Sithole (“Sithole”). The appellant and Master Sergeant Mafuwa (“Mafuwa”) were there. Mafuwa then instructed him (i.e. Muzanenhamo) and two other soldiers to get onto the truck, stating that there was a job to be done. The four soldiers, including Mafuwa, then boarded the truck and were driven to the area of the flats.

At the flats, Mafuwa instructed Muzanenhamo and the other soldiers to load some bricks onto the truck, and they did, being assisted by Mafuwa. When there were two or three layers of bricks on the truck, the truck was driven by Sithole to a residential stand in the suburb of Warren Park North in Harare, with Muzanenhamo, Mafuwa and the other two soldiers on the truck. At that stage Muzanenhamo did not know that the owner of the stand was the appellant.

The bricks were offloaded at the stand, and Muzanenhamo observed that there was a house under construction, and some bricks which had previously been delivered to the stand. However, he could not say whether the bricks he found on the stand were similar to the ones they had delivered. Although he could not say whether the bricks they had delivered to the stand were common bricks or face bricks, after being shown samples of the two types of bricks he said they had delivered a mixture of the two types. He only became aware that the stand to which the bricks had been delivered belonged to the appellant after the investigating officer informed him about that during the course of the investigations.

The third witness was Mafuwa, and his evidence was as follows. At the relevant time he was a Flight Commander attached to 201 Squadron, and the appellant was senior to him. He came to know about the appellant’s stand in Warren Park North because, acting on the appellant’s instructions, he used to purchase building materials for him and deliver them to the stand.

One day in the year 2000 Mafuwa went to work as usual at the 201 Squadron. Thereafter, the appellant arrived and spoke to Flight Lieutenant Ngadya (“Ngadya”) who was his (i.e. Mafuwa’s) Commanding Officer. Ngadya then instructed Mafuwa to get some soldiers from the Squadron, board the SF911 truck with them, proceed to the area of the flats, load some bricks onto the truck and deliver them to a stand in Warren Park North. He complied with that instruction and Muzanenhamo was one of the soldiers who assisted in loading the bricks onto the truck and delivering them to the stand in Warren Park North. Sergeant Stanley Maregedze (“Maregedze”) assisted in the loading of the bricks.

Mafuwa said he did not know how many bricks had been delivered to the stand in question on that occasion, but said that there were two layers of bricks on the truck. He only became aware that the stand belonged to the appellant when, on a subsequent occasion, he and the appellant delivered bags of cement to the stand.

It was put to this witness in cross-examination that he had contradicted what he had said in his statement to the police. In that statement he was recorded as having said that he was approached by the appellant and was instructed to get some soldiers from the Squadron, board the SF911 truck with them and deliver the bricks, which were already on the truck, to the stand in Warren Park North.

In reply, Mafuwa maintained that he had not been instructed directly by the appellant, but had been instructed by Ngadya after the appellant had spoken to Ngadya. He added, however, that the paragraph in his statement to the police, referred to by counsel in cross-examination, related to an occasion different from the one in respect of which he had given evidence. He stated that on that occasion, he had in fact boarded a truck which was carrying some bricks and which later delivered them to the stand in Warren Park North.

Furthermore, he stated that when he signed the statement he had not read it because he had not had the time to do so. The statement had been brought to him when he was attending a management training course. He had come out of the classroom, assumed that the statement was correct and signed it.

The fourth witness called by the prosecution was Maregedze. His evidence was as follows. In the year 2000 he was attached to the 203 Squadron. On the day in question, the appellant arrived at the 203 Squadron, driving a motor vehicle with the registration number 192 MP 95, and told Sergeant Masunga that he required five soldiers to do a certain job. Maregedze and four others were selected. They boarded the appellant’s vehicle and were driven to the flats, where they found Sithole, Mafuwa and other soldiers from the 201 Squadron apparently waiting for them. The SF911 truck was parked nearby. The appellant then instructed the two groups of soldiers to load 1 500 bricks onto the truck. When that had been done, the appellant drove his motor vehicle and led the way to the stand in Warren Park North. He was followed by the truck being driven by Sithole. The bricks were offloaded at the stand and Mafuwa and Sithole informed Maregedze that the stand belonged to the appellant.

It was Maregedze’s evidence that he and other soldiers had taken part in loading bricks onto the truck and delivering them from the base to the stand in Warren Park North on three occasions.

In cross-examination it was put to Maregedze that he had contradicted the statement he made to the police in which he stated that on the first occasion 3 000 bricks were loaded onto the truck and delivered to the stand in Warren Park North. In reply, he stated that he had made the statement about two years before giving evidence in court and had not had the opportunity to refresh his memory by reading it. He added that what he had said in the statement must be correct because when he made the statement the events were still fresh in his mind. In the circumstances, he said that the correct position was that 3 000 bricks were loaded on the first occasion and 1 500 on the second occasion. He could not, however, recall how many bricks were loaded on the third occasion, but he was certain that some bricks were delivered from the base to the stand in Warren Park North on three occasions.

The fifth witness called by the prosecution was Lance-Corporal Zishiri (“Zishiri”). His evidence was as follows. He was attached to the 201 Squadron shortly after completing the training course designed for recruits.

In September 2000 he reported for duty at the 201 Squadron. Thereafter, the appellant, who was driving a Mazda B 1600 pick-up truck, arrived and spoke to Corporal Mvundura (“Mvundura”). A short while later Mvundura instructed Zishiri to collect some shovels from the storeroom at the Squadron and board the appellant’s truck.

After collecting the shovels, Zishiri and other soldiers attached to the 201 Squadron boarded the appellant’s truck and were driven to the flats where they were instructed to load, and did load, some quarry stones onto the appellant’s truck. The truck was then driven by the appellant towards the guardroom, with Zishiri and his colleagues on board.

However, before the truck reached the guardroom, it was stopped. Zishiri and his colleagues disembarked from it and Flight Lieutenant Dumisani Tholo (“Tholo”) boarded it. It was then driven by the appellant towards the guardroom, but Zishiri did not know whether or not it was driven out of the base. Zishiri added that he did not know the quantity of the quarry stones loaded onto the truck on that occasion.

Finally, the prosecution called Tholo as a witness. His evidence was as follows. At the relevant time he was the base police officer and had known the appellant since 1988.

On at least two occasions he saw the appellant commanding troops which were loading some bricks onto an SF911 truck. That was in the year 2000. He asked the appellant where the bricks were being taken and in reply the appellant said that the bricks were going to be used in the renovation of the AFZ range at Chikurubi.

However, when Tholo subsequently carried out some investigations he discovered that there had not been any renovations at the range in question. He reported the matter to various senior officers but nothing was done.

When it was put to him in cross-examination that he had incriminated the appellant because he himself had been found guilty of theft and discharged from the Defence Forces, he denied the allegation and stated that he had committed his offence long after the appellant had committed his.

That sums up the evidence led by the prosecution.

The appellant gave evidence and denied the charge. He alleged that all the prosecution witnesses had lied against him in order to cover up their own criminal offences. In other words, he alleged that the witnesses had conveniently made him a scapegoat.

However, in my view, the evidence given by the prosecution witnesses established beyond reasonable doubt that the appellant stole at least 4 500 bricks. The evidence established that on several occasions the appellant, directly or indirectly, instructed some soldiers to load some bricks onto the SF911 truck, and that the truck was then driven by Sithole to the appellant’s stand in Warren Park North where the bricks were offloaded. The bricks, which belonged to the State, had been unlawfully removed from the base on the appellant’s instructions.

As already indicated, the evidence given by Tholo, the base police officer, was that when he asked the appellant why he was removing the bricks from the base the appellant’s reply was that the bricks were required for the renovation of the AFZ range at Chikurubi. But when Tholo subsequently checked the range in question, he discovered that no renovation had taken place and that the bricks which had been removed from the base by the appellant were not at the range. That evidence was very significant and destroyed the appellant’s credibility completely.

With regard to the allegation of theft of two cubic metres of quarry stones, although there was evidence that on one occasion the appellant instructed some soldiers to load some quarry stones onto a Mazda B 1600 pick-up truck which was later driven by the appellant towards the guardroom, there was no evidence on the quantity of the quarry stones loaded onto the truck. Zishiri said that he had not informed the investigating officer about the quantity of the quarry stones loaded onto the truck because he did not know the quantity. He did not even say that the truck was loaded to full capacity.

There was, therefore, no valid basis for the finding that the appellant had stolen two cubic metres of quarry stones.

However, I do not think that the alteration of the nature and quantity of the property stolen in this case calls for a reduction in the sentence which was imposed on the appellant. In a number of cases, this Court has stated that theft of property belonging to the State by persons employed by the State is viewed very seriously, and that in such cases deterrent sentences are called for. That applies to the present case.

In the circumstances, subject to the alteration of the nature and quantity of the property stolen and the deletion of the order that the sum of $118 284.00 be recovered from the appellant’s terminal benefits, the appeal against conviction and sentence is dismissed.

MALABA JA: I agree.

GWAUNZA JA: I agree.

Chinamasa, Mudimu & Chinogwenya, appellant's legal practitioners

Defence Legal Services, respondent's legal practitioners