APPEAL https://old.zimlii.org/taxonomy/term/9499/all en Gessen v Chigariro (SC 80-21, Chamber Application No. SC 75/21) [2021] ZWSC 80 (30 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/80 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>Judgment No. SC 80/21</p> <p>Chamber Application No. SC 75/21</p> <p> </p> <p><strong>REPORTABLE</strong><strong>        (77)</strong></p> <p><strong>ALLEN     ALESKSEY     GESSEN</strong></p> <p><strong>v</strong></p> <p><strong>PRISCILLA     CHIGARIRO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE: 2 JUNE 2021 &amp; 30 JUNE 2021</strong></p> <p> </p> <p><em>T. Zhuwarara,</em> for the applicant.</p> <p>Ms<em> M. Musuka, </em>for the respondent.</p> <p> </p> <p><strong> IN CHAMBERS</strong></p> <p> </p> <p><strong>MATHONSI JA:        </strong>This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.  The applicant’s initial appeal filed timeously was struck off the roll on 1 April 2021 for the reason that the notice of appeal was fatally defective.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>                   The applicant is a citizen of the United States of America (USA) even though he was born in Russia.  The respondent is a Zimbabwean citizen.  The two met in 2011 in Harare Zimbabwe and commenced having a relationship which is said to have been upgraded to a customary marriage by reason that the applicant paid the bride price for the respondent.  They never registered a legal marriage.</p> <p>                   The parties’ association was blessed with a boy child called Orrin who was born on 23 July 2013.  During the period extending from 2015 to 2019, the applicant secured employment in Russia and as such became resident in that country.  In 2016 the respondent and the boy child Orrin followed the applicant to Russia where the family took up residence.</p> <p> </p> <p>                   It was during the period of their temporary residence in Russia that the couple decided to have a second child.  Owing to some health challenges, the respondent could no longer carry the pregnancy.  They decided to have the child through surrogacy and found a surrogate mother with whom a surrogacy agreement was entered into.  It was signed by the applicant, the respondent and the surrogate mother on 2 March 2018.</p> <p> </p> <p>                   The surrogacy agreement stated in pertinent part:</p> <p>“We undertake to assume the equal rights and obligations of parents with respect to the children, born by ‘surrogate mother’ after embryo transfer to the uterine cavity of ‘surrogate mother’, in terms of their upbringing, as defined by the Russian legislation on family and marriage.”</p> <p> </p> <p> </p> <p> </p> <p>                    In pursuance of that agreement, the surrogate mother carried the pregnancy for the parties and gave birth to the girl child, Elizabeth, now at the centre of the dispute, on 15 November 2018.  Unfortunately the parties’ relationship hit turbulence and a short while after the birth of the child they commenced living apart.         </p> <p> </p> <p>                    Although the surrogate mother had given her consent for them to register the child as their own as genetic parents, the Khamovhichesky Department of the Civil Registry of Moscow refused their application to register the child as they were not married.  Acting together, they instituted a law suit against the Registry Office for their recognition as the parents of Elizabeth.</p> <p>                   On 27 September 2019, the Meshchansky District Court of Moscow allowed the state registration of the child and for the respondent to be registered as its mother.  The applicant was not so lucky.  His application for registration as the father was rejected because, by then, he had had his employment in Russia terminated and had relocated to the United States of America.  In doing so, the applicant took the boy child, Orrin, with him.</p> <p> </p> <p>                   Although there is no convergence between the parties as to what their intentions were, the applicant says he relocated to United States of America with the respondent’s consent, while the respondent’s position is that the applicant abducted Orrin and deserted her and Elizabeth.  It is however not in dispute is that the respondent and Elizabeth were left stranded in Russia.  They had been in that country on the applicant’s expired VISA.</p> <p> </p> <p>                   The respondent and Elizabeth ended up living at the Zimbabwean embassy while processing documents to move to Zimbabwe.  In due course, the duo found their way to Zimbabwe in November 2019 where they have remained to this date.  The applicant was aggrieved.</p> <p> </p> <p>                   He brought an application to the High Court in terms of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).  The Hague Convention has been domesticated in Zimbabwe and bears the force of law by virtue of s 3 of the Child Abduction Act [<em>Chapter 5:05</em>].  The basis of the applicant’s case was that the removal of the child from Russia and its retention in Zimbabwe are unlawful.</p> <p> </p> <p>                   The applicant sought a declaratory order to that effect.  Consequent to that, the applicant sought an order that the child be removed from Zimbabwe and sent to Boston in the United States of America or to Russia for a determination of the parties’ parental rights in those jurisdictions.  According to the applicant, Russia was the child’s habitual residence.  He asserted that the child had been in that country awaiting the processing of documentation which would have enabled it to migrate to the United States of America with the respondent in terms of their agreement.</p> <p> </p> <p>                   The respondent opposed the application.  According to her, the parties had agreed to return to Zimbabwe and settle here.  She stated that an email she had written to the applicant’s lawyer insinuating the existence of an agreement with the applicant for their relocation to the United States of America had been written under duress.  The respondent asserted full parental rights over the child to the exclusion of the applicant as her rights had been settled by the court in Russia.  According to her, the child was lawfully retained as a Zimbabwean.</p> <p> </p> <p>                   The High Court dealt with a number of approaches in seeking to determine the child’s habitual residence for purposes of the Hague Convention.  It concluded that, while the issue of the intention of the parties was key in determining habitual residence, the child’s parents never formed an intention to settle in Russia.  They travelled there for work only and for that reason Russia was not the child’s habitual residence.  It could not be returned to that country.</p> <p> </p> <p>                   By the same token, the High Court found that it could not order that the child be returned to the United States of America given that doing so would not be in line with the Hague Convention’s purpose of restoring the <em>status quo ante</em>.  Finding the Hague Convention inapplicable, the High Court dismissed the application.</p> <p>                   The applicant was dissatisfied.  On 9 October 2020, well within the time allowed by the rules of court, the applicant filed an appeal to this Court.  The appeal was defective in that the relief sought therein was incompetent. At the hearing, the appeal suffered the fate of all defective appeals.  It was struck off the roll.</p> <p> </p> <p><strong>THE APPLICATION</strong></p> <p>                   The appeal having been struck off the roll, the applicant has filed the present application for condonation of the late filing of an appeal and the extension of time within which to appeal.  The application before me was filed on 9 April 2021 just 8 days after the initial appeal was struck off.  Clearly there was no material delay in seeking condonation.</p> <p> </p> <p>                   The applicant’s explanation for failure to comply with the rules is that right up to the date of the hearing of the appeal, he was labouring under the mistaken belief that he had filed a valid appeal.  The explanation is actually given by the applicant’s legal practitioner who takes ownership of the defective prayer in the initial appeal.</p> <p> </p> <p>                   On the prospects of success on appeal, the point is made on behalf of the applicant that the High Court was wrong in dismissing the application on the basis that shared parental intent could not give rise to an application under the Hague Convention.  The applicant would also want to contest the High Court’s finding that Russia was not the child’s habitual residence.</p> <p> </p> <p>                   The respondent opposes the application.  In doing so, the respondent asserts that the intended appeal enjoys no prospects of success because the applicant had sought the return of the child to Russia.  That country could not possibly be said to be the child’s habitual residence in the circumstances of the case.  Accordingly the High Court’s decision cannot be assailed.</p> <p> </p> <p>                   In the respondent’s view the applicant ought to have appealed against the judgment of the court of Moscow which gave her sole parental rights over the child.  She denies unlawfully retaining the child in Zimbabwe.</p> <p> </p> <p><strong>PRELIMINARY OBJECTIONS</strong></p> <p>                   Ms <em>Musuka</em> for the respondent raised two preliminary objections.  Firstly, she submitted that the prayer in the heads of argument filed on behalf of the applicant was defective.  It sought the dismissal of the appeal when what is before the court is an application for condonation.  In counsel’s view, such inattention has permeated the manner in which the applicant has dealt with this matter.</p> <p> </p> <p>                   Mr <em>Zhuwarara</em> for the applicant was down on his knees, so to speak, when he apologised profusely for that typing error.  He promptly applied for the deletion of the prayer from the heads of argument.  While such clerical oversights should not be done in papers filed by senior counsel for the benefit of a superior court, they cannot form the basis of a dismissal of an application.</p> <p> </p> <p>                   Secondly, Ms <em>Musuka</em> objected to the filing of the applicant’s answering affidavit out of time.  In terms of r 43(5) the applicant should file his or her answering affidavit within 3 days of being served with the respondent’s opposing affidavits.  In this case the answering affidavit was filed on the 4th day.</p> <p> </p> <p>                   In my view, no prejudice was suffered by the respondent by that marginal failure to meet the time lines set by the rules.  This is more so given that the offending affidavit was filed on 22 April 2021 several weeks before the application was set down.  I restate that such small indiscretions should not be allowed to stand in the way of the attainment of justice and the right of litigants to access the court.  I condoned the late filing of the answering affidavit.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>                   What the court has regards to in an application for condonation is now settled.  The court has a discretion, which is exercised judicially, in considering an application of this nature.  Relevant factors in this regard are the degree of non-compliance with the rules of court, the explanation for the failure to comply, the prospects of success on appeal, the importance of the case, the interest of the respondent in the finality of the judgment, the convenience to the court and the avoidance of unnecessary delays in the administration of justice.  See <em>Maheya v Independent African Church</em> 2007(2) ZLR 319 (S) at 323 B-C.</p> <p> </p> <p>                   It is also settled that these factors have to be considered in conjunction with one another as they tend to be complimentary.  While it is true that consideration of the factors generally boils down to having regard to the explanation given by the applicant for condonation for delay  and the prospects of success on appeal, the lack of a satisfactory explanation for the delay may be complimented by good prospects of success on appeal.  See <em>Khumalo v Mandeya and Another </em>2008 (2) ZLR 203 (S).</p> <p> </p> <p><strong>APPLICATION TO THE FACTS</strong></p> <p>                   The judgment sought to be appealed against was handed down on 1 October 2020. </p> <p>The applicant’s putative appeal under case number SC 421/20 was struck off the roll on 1 April 2021.  There was no delay in filing this application after the striking off of the appeal.</p> <p> </p> <p>                   The applicant’s failure to comply has been explained as the oversight of his legal practitioner who drafted a defective notice of appeal.  I accept that this Court has stated in the past that there is a limit beyond which a litigant cannot escape the consequences of his or her legal practitioner’s dilatoriness or lack of diligence.  See <em>Musemburi and Another v Tshuma</em> 2013(1) ZLR 526 (S) at 529 E-H; 530 A-B.</p> <p> </p> <p>                   I take the view, however, that this is not a case in which the legal practitioner’s lack of diligence should be visited upon the applicant.  This is so mainly for two reasons.  The first one is that the infraction by the legal practitioner only related to the crafting of the prayer in the notice of appeal.  It is a fault that cannot be said to be gross.</p> <p> </p> <p>                   The second is that I hold the view that the issues raised by the proposed appeal are arguable.  They deserve the attention of the full bench of the appeal court, if for no other reason but that the Supreme Court has not authoritatively pronounced itself on them.</p> <p> </p> <p>                   I can only refer to the manner in which the court <em>a quo</em> dealt with the issue of the agreement of the parties in coming to a conclusion that the Hague Convention’s application was not triggered.  For a matter to fall under the Hague Convention its article 3 must be satisfied.  It provides:</p> <p>“The removal or the retention of a child is to be considered wrongful where-</p> <ol> <li>  It is in breach of rights of custody attributed to a person, an institution or any other</li> </ol> <p>body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention;</p> <ol> <li>  At the time of removal or retention, those rights were actually exercised, either</li> </ol> <p>jointly or alone, or would have been exercised but for the removal or retention.</p> <p> </p> <p>The right of custody mentioned in subparagraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” (The underlining is for emphasis).</p> <p> </p> <p> </p> <p>                   In <em>Peacock v Steyn</em> 2010(1) ZLR 254(H) the court found that the existence of a custody agreement between the parents of minor children who are not married regulating their rights of shared custody, triggered the application of the Hague Convention.  This is by virtue of article 3.</p> <p> </p> <p>                   In the present case, the surrogacy agreement I have referred to above provided some kind of shared custody between the parties.  That therefore presents the applicant with an arguable case on appeal.  Apart from that, Mr <em>Zhuwarara</em> drew attention to an email written by the respondent on 11 November 2019 while she was still in Russia.  He submitted that the letter affirms the existence of an agreement between the parties to move the child to the United States of America.</p> <p> </p> <p>                   The email was addressed to the respondent’s legal practitioner instructing him to relay it to the applicant’s legal practitioner for the attention of the applicant.  It reads:</p> <p>“Please be advised that Elizabeth and I are finally ready to travel and are now able to make plans for next steps.  As you have previously indicated you had gone ahead to America and we were to follow so that the children would be together and neither one of us would be deprived of his rights to both children.  We will of course need to travel to Zimbabwe first in order to get visas and after that will proceed to America.  Please may you send confirmation that this is indeed still the plan as well as confirmation that you will be buying tickets so that we are all reunited.  I look forward to receiving your response and finally ending the current separation from Orrin.”</p> <p> </p> <p> </p> <p> </p> <p>                   I am aware that there was a suggestion by Ms <em>Musuka</em> that the email was written under duress, the particulars of which were not clearly articulated.  That is however immaterial for our present purposes.  What is important is that the statement by the respondent suggests that an agreement for shared custody may have existed.</p> <p> </p> <p>                   If that is the case, the applicant is entitled to argue on appeal that the retention of the child in Zimbabwe in breach of such agreement brings the case under the ambit of the Hague Convention.  I am not sitting to determine the appeal but merely to consider whether it is arguable.  I think it is.  A case has been made for the grant of the indulgence of condonation.</p> <p> </p> <p>                   Regarding the issue of costs, Mr <em>Zhuwarara</em> for the applicant tendered to pay the respondent’s costs regardless of the outcome of the application.  This he did upon a realisation that the application was necessitated by the applicant’s blameworthiness.  An award of costs will be made by consent.</p> <p> </p> <p>                   In the result, it be and is hereby ordered as follows:</p> <ol> <li>The application for condonation for non-compliance with r 38(1)(a) of the Supreme Court Rules, 2018 be and is hereby granted.</li> <li>The application for extension of time within which to file and serve a notice of appeal against the judgment of the High Court handed down on 1 October 2020 as HH 620-20 be and is hereby granted.</li> <li>The applicant shall file his notice of appeal within 7 days from the date of this judgment.</li> <li>By consent, the applicant shall bear the costs of this application.</li> </ol> <p><em>Mambosasa Legal Practitioners</em>, applicant’s legal practitioners</p> <p><em>Karuwa and Associates</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/80/2021-zwsc-80.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40938">2021-zwsc-80.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/80/2021-zwsc-80.pdf" type="application/pdf; length=348415">2021-zwsc-80.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extension-time-within-which-note-appeal">Extension of time within which to note appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2010/81">Peacock v Steyn (Case No. HC 1370/10) [2010] ZWBHC 81 (04 August 2010);</a></div></div></div> Thu, 15 Jul 2021 06:50:04 +0000 Sandra 10080 at https://old.zimlii.org Humbe v Muchina And 4 Others (SC 81-21, Civil Appeal No. SC 373/20) [2021] ZWSC 81 (01 July 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/81 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 81/21</p> <p>Civil Appeal No. SC 373/20</p> <p> </p> <p><strong>REPORTABLE</strong>        <strong>(78)</strong></p> <p><strong>FRANK     HUMBE</strong></p> <p><strong>V</strong></p> <ol> <li><strong>    DESMOND     MUCHINA     (2)     SPARKLES     SERVICES     (PRIVATE)     LIMITED     (3)     GODFREY     MUNYAMANA     (4)     THE     SHERIFF     OF     ZIMBABWE     (5)     FADZAYI     MUNYAMANA</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA, MATHONSI JA &amp; KUDYA AJA</strong></p> <p><strong>HARARE: 10 MAY 2021 &amp; 01 JULY 2021.</strong></p> <p> </p> <p><em>T. S. T. Dzvetero </em>with Ms<em> T. M. Dzvetero, </em>for the appellant.</p> <p><em>E. K. Muhlekiwa, </em>for the second, third and fifth respondents.</p> <p>                   <strong>MATHONSI JA:      </strong>The appellant brought an urgent chamber application in the High Court for a stay of the execution of a judgment obtained by the first respondent against the second and third respondents on 12 February 2018 in the sum of US$352 851,30 together with interest and costs of suit.</p> <p>                   By judgment delivered on 21 August 2020, the High Court dismissed the application with costs.  This appeal is against that judgment dismissing the appellant’s urgent application.</p> <p><strong>THE FACTS</strong></p> <p>                   The third and fifth respondents, who are husband and wife, hold title to Stand 67 Guildford Estate Township of Subdivision H of Guildford of Borrowdale Estate, also known as No 67 Guildford Crescent, Borrowdale Harare, (the house) by Deed of Transfer Number 1447/2009.  On 15 November 2013 they entered into a deed of sale in terms of which they sold the house to the appellant for US$380 000.00 payable in certain instalments from 30 November 2013 to 30 June 2014.</p> <p>                   There is no convergence between them <a name="_GoBack" id="_GoBack"></a>as to whether the full purchase price was paid.  The appellant alleges having paid part of the purchase price through the sale of his own neighbouring house through the agency of the second respondent and part of it through the sale to the third respondent of his Mercedes Benz S Class motor vehicle.</p> <p>                   The appellant alleges further that although he failed to pay the cash balance of the purchase price in accordance with the agreement, he has however paid it in full.  On the other hand the third and fifth respondents’ position is that the appellant defaulted in his payments and after giving him the requisite 30 days notice in terms of the deed of sale, they duly cancelled the agreement.</p> <p>                   Notwithstanding such cancellation the appellant still sued the second, third and fifth respondents in case number HC 11367/15, which was filed on 20 November 2015, for an order compelling transfer of the house to himself and for their eviction from it.  The summons action in question was defended and does not appear to have been prosecuted with any zeal thereafter.</p> <p>                   Meanwhile the second and third respondents were sued by the first respondent in case number HC 11601/17 which summons action was filed on 14 December 2017. He obtained judgment against them on 12 February 2018 in the sum of US$352 851.30 plus interest and costs of suit aforesaid.  A writ was thereafter issued which the fourth respondent was instructed to execute.  In pursuance whereof the house in dispute was placed under judicial attachment.</p> <p>                   Following the attachment, the appellant lay a claim to the house motivating the fourth respondent to institute interpleader proceedings under case number HC 7525/19.  By judgment delivered on 9 June 2020 in <em>The Sheriff for Zimbabwe v Humbe &amp; Anor</em> HH 378/20, CHINAMORA J dismissed the appellant’s interpleader claim and declared the house executable.  The judgment remains extant and has not been appealed against.</p> <p>                   Instead, the appellant filed a further application on 21 July 2020 under case number HC 3805/20.  He sought an order setting aside the writ of execution in terms of which the house was attached.  The basis of the application was that the Sheriff was enjoined by r 326 of the High Court Rules to first diligently pursue the attachment of a debtor’s movable property before going against immovable property. In addition, the appellant took the view that the house could not be the subject of execution as it was <em>res litigiosa</em> having been the subject of litigation in HC 11367/15.</p> <p>                   In the same application the appellant also sought a declaration that his rights in the house “preceded” those of the first respondent.  He also sought an order that the house be transferred to him.  This, the appellant sought, in spite of the judgment of CHINAMORA J issued on 9 June 2020 which, as I have said, remains extant.</p> <p>                   At the same time that the appellant filed the court application in case number HC 3805/20, he also filed the urgent chamber application for interim relief of a stay of execution which is the subject of the present appeal.  The application was opposed by the first, second, third and fifth respondents.  The stay of execution was sought pending the finalisation of his claim in HC 11367/15 and his application for a declaratory order and the setting aside of the writ which is case number HC 3805/20.</p> <p> </p> <p><strong>DECISION <em>A QUO</em></strong></p> <p>                   The court <em>a quo</em> found that the appellant had failed to pay the full purchase price for the house in terms of the deed of sale.  In doing so the court <em>a quo</em> was fortified by the fact that the deed of settlement signed by the appellant and the third respondent on 12 December 2017 which, although later repudiated by the third respondent as having been procured by duress, acknowledged that there was still an outstanding sum of US$50 000.00.</p> <p>                   The court <em>a quo</em> recognised that both rules 326 and 327 of the High Court Rules provide for options to a party which applied for the issuance of a writ.  They do not provide a remedy to the appellant.  After criticizing the interim relief sought by the appellant which was the same as the final order sought, the court <em>a quo</em> wondered how the appellant could have filed further applications in the face of the judgment of CHINAMORA J which I have alluded to above.</p> <p>                   It was the court <em>a quo</em>’s finding that given that the house was registered in the names of the third and fifth respondents they hold real rights over the house.  The appellant never acquired any real rights over it.  The attachment of the house by the Sheriff in pursuance of a writ of execution gave the first respondent, as the judgment creditor in whose favour the writ was issued, a <em>pignus judiciale </em>on it created by the attachment.  That is to say an attachment creates a judicial mortgage on the property so attached.</p> <p>                   The conclusion of the court <em>a quo</em> was that the appellant failed to establish a <em>prima facie</em> right over the house as would entitle him to a stay of execution.  His claim through interpleader proceedings having failed and the house declared executable, the appellant was seeking “to mount a second bid based on essentially the same facts.”  He was precluded from doing so because the court <em>a quo</em> had already pronounced itself on the issue.</p> <p> </p> <p>                   Overcome by grief as a result, the appellant launched this appeal on grounds set out below:</p> <p> </p> <p><strong>GROUNDS OF APPEAL</strong></p> <ol> <li>The court <em>a quo</em> erred in fact and grossly misdirected itself in finding that the appellant breached the contract of sale by failing to pay the full purchase price by the date that the price was due.</li> <li>The court <em>a quo</em> erred in fact and grossly misdirected itself in finding that the appellant caused the arrest and prosecution of the fifth respondent on fabricated allegations of fraud and coerced the third respondent to sign the deed of settlement using the fifth respondent’s arrest.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in finding that the dispute between the parties in the instant matter is <em>res judicata</em>.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in disregarding that the property in dispute is <em>res litigiosa</em> and in further failing to give any reasons for such discount.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in disregarding that the application was an application for stay of execution pending a court application in terms of r 340 of the Rules of the High Court and in failing to give any reasons for such discount.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in determining that the interim relief was the same as the final relief and as such the relief could not be granted when in fact the interim and final reliefs were different and even if the reliefs were the same, the court could and it ought to have granted it either way even if it were to be found to be the same.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in exercising its discretion without addressing the requirements of and purpose for proceedings for stay of execution.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in finding that r 326 of the High Court Rules can only be invoked by a person who applied for the writ of execution.</li> </ol> <p> </p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>             Clearly the grounds of appeal stray from the field of discourse.  They seem to attack every pronouncement in the judgment <em>a quo</em> without identifying the <em>ratio decidendi</em>.  The court <em>a quo</em> dismissed the application because it made a finding that the appellant failed to prove a <em>prima facie</em> right over the house.  This was more so regard being had that the same court had already pronounced itself when it declared the house executable.</p> <p>             In that regard, only one issue commends itself for determination in this appeal.  It is whether the court <em>a quo</em> erred in dismissing the application for stay of execution.</p> <p><strong>THE LAW</strong></p> <p>             The appellant approached the court <em>a quo</em> for a stay of execution pending the prosecution of a summons claim to compel transfer of the house to himself, which by then had been pending for 5 years, and a court application which seeks both a declaratory order that he possesses superior rights in the house and that the house be transferred to him.  The court application also seeks the setting aside of a writ issued in favour of the first respondent against a house not registered in the appellant’s name but those of the judgment debtors in that suit.</p> <p>             The execution of a judgment is a process of the court.  The court therefore retains an inherent power to manage that process having regard to the applicable rules of procedure.  What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court’s judgment has been stated in a number of cases.</p> <p>             In <em>Mupini v Makoni</em> 1993 (1) ZLR 80(S) at 83 B–D this Court stated the position of the law quite clearly:</p> <p>“In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands.  The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.  The general rule is that a party who has obtained an order against another is entitled to execute upon it.  Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for in such instances the carrying of it into operation could render the restitution of the original position difficult.  See <em>Cohen v Cohen</em> (1) 1979 ZLR 184(G) at 187C, <em>Santam Ins Company Limited v Paget </em>(2) 1981 ZLR 132(G) at 134 G–135B; <em>Chibanda v King</em> 1983(1) ZLR 116(H) at 119 C-H; <em>Strime v Strime</em> 1983 (4) SA 850(C) at 852 A.”</p> <p>                   It is settled in this jurisdiction that a judgment creditor is entitled to attach and have sold in execution the property belonging to the judgment debtor.  This is so even in a situation where a third party has a personal right against such a debtor in respect of the same property.  The position is the same even where the personal right of the third party preceded the attachment of the property.  See Herbstein and Van Winsen, <em>Civil Practice of The Superior Courts in South Africa</em> 3 Ed at p 597 (quoted with approval in <em>Maphosa &amp; Anor v Cook &amp; Ors </em>1997 (2) ZLR 314 (H) at p 316 G).</p> <p>                   To that should be added the hallowed principle of our law that the conveyance of ownership in immovable property from person to person is achieved through the registration of transfer at the deeds registry.  Real rights in an immovable property are held only by registration at the deeds registry.  This was underscored by this Court in the seminal remarks made in <em>Takafuma v Takafuma</em> 1994 (2) ZLR 103(S) at 105 G-106A;</p> <p>“The registration of rights in immovable property in terms of the Deeds Registries Act [<em>Chapter 20:05</em>] is not a mere matter of form.  Nor is it simply a devise to confound creditors or the tax authorities.  It is a matter of substance.  It conveys real rights upon those in whose name the property is registered.  See the definition of ‘real right’ in s 2 of the Act.  The real right of ownership, or <em>jus in re propria</em>, is ‘the sum total of all the possible rights in a thing’ – see Wille’s <em>Principles of South African Law </em>8 ed p 255.”</p> <p>                   A party which lays a claim to property which has been placed under judicial attachment by the Sheriff in the discharge of his or her duties as the executive of the court, has remedies provided for in the rules of court.  Such a party is required to submit a claim to the Sheriff in order to trigger the institution by the latter of interpleader proceedings in terms of Order 30 of the High Court Rules.</p> <p>                   The court resolves the conflicting claims of parties in interpleader proceedings by either upholding the claimant’s claim or dismissing it. Where it finds the claimant’s claim to be without merit, the court, in addition to dismissing the claim, ordinarily declares the property under attachment executable. The result is the opposite where the claim is upheld.</p> <p> </p> <p>                   In the present case, after raising essentially the same arguments as in the urgent chamber application the subject of this appeal, the appellants’ interpleader claim was dismissed by the court <em>a quo</em>.  It declared the house executable at the instance of the first respondent.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>                   The first respondent has an extant judgment in his favour issued against the second and third respondents.  The judgment is sounding in money and it was in pursuance of it that a writ of execution was issued against the house.</p> <p>                   The house is registered at the Deeds Registry in the name of one of the judgment debtors.  It is the same house which the appellant lays a claim to by virtue of a deed of sale which ran into turbulence.  The dispute between the appellant and those of the respondents who sold the house to him had not been resolved by the courts at the time that the first respondent instructed the Sheriff to attach the house for sale in execution.</p> <p>          On the authorities that I have made reference to above the judgment creditor, who is the first respondent, was entitled at law to have attached and sold in execution, the house which is registered in the name of his debtor.  The appellant is a third party who only has personal rights exercisable against the debtor in respect of the ownership and possession of the house.  As much as those personal rights came about prior to the attachment, or may have arisen prior to the first respondent’s cause of action that is of no moment in law.</p> <p>                   The court <em>a quo</em> cannot be faulted for its finding that the attachment of the house in execution created a judicial mortgage or <em>pignus judiciale</em>.  The appellant’s situation is exacerbated by the failure of his interpleader claim and the prior declaration made by the court <em>a quo,</em> that the house was executable in favour of the first respondent.</p> <p> </p> <p>                   In dismissing the appellant’s claim to the same house CHINAMORA J, who determined the interpleader, relied on a line of authorities to the effect that where the house is registered in the name of the judgment debtor, he or she remains the owner of the property.  For that reason it is susceptible to execution.  The learned Judge concluded:</p> <p>“In <em>casu</em>, the judgment debtor has title to the property.  It is indeed immovable property.  However I propose to equate possession in the case of movable goods to title in respect of immovable property.  To the extent that possession and title raise a rebuttable presumption of ownership, the principle in <em>Zandberg v Van Zyl</em> (1910 AD 258 at 272) applies to immovable property.  The starting point is to examine the legal implication of title.  Title confers real rights in immovable property.  It cannot be gain said that a title deed is <em>prima facie</em> proof that a person enjoys real rights over the immovable property defined in the deed.”</p> <p> </p> <p>                    (The Sheriff for Zimbabwe v Humbe and Another, <em>supra</em>).</p> <p>                    It is against the foregoing background that the appellant approached the court <em>a quo</em> for the second time, seeking a stay of execution to enable him to pursue the determination of the parties’ rights in the house all over again.  Those rights had already been determined by the same court in a judgment that was not impugned and remains extant.</p> <p>                    In my view the court <em>a quo</em> cannot be faulted for coming to the conclusion that after the appellant had chosen to pursue interpleader proceedings, which failed, he could not mount a second bid in the same court based, essentially, on the same facts.  It is true that the court <em>a quo</em> had already pronounced itself on the status of the house having declared it executable.  It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant’s favour, but the existence of a sustainable cause of action.  In this case there was none.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>                   I have set out what an applicant for a stay of execution is required to establish in order to motivate the exercise of the court’s discretion in his or her favour, namely that special circumstances exist for the court to halt its own execution process.</p> <p>                   The appellant dismally failed to discharge that onus.  This is a case in which the same property had been declared executable by judgment of the same court.  He had not appealed that judgment leaving it binding against the parties.  It would have been extremely incompetent for the court <em>a quo</em> to grant a stay of two judgments of its own definitively settling the rights of the parties.</p> <p>                   In addition, the house lawfully registered in the name of a judgment debtor had been placed under attachment in execution of a valid judgment.  The appellant only possessed personal rights against the debtor which could not override real rights in law.  There was no legal basis for a stay and certainly no special circumstances as would invite the court to grant it. </p> <p>                        I do not agree with Mr <em>Muhlekiwa’s</em> submissions that the appropriate order should have been the striking off of the application from the roll.  The reasons advanced for that proposition are clearly wrong.  The application was determined on the merits, the court having found that it lacked merit.  It could only be disposed of by its dismissal.</p> <p>                   Regarding the question of costs, this is an ill-conceived appeal, wholly without merit and predicated on extraneous grounds.  I see no reason why costs should not follow the result.</p> <p> </p> <p>                   In the result it be and is hereby ordered as follows:</p> <ol> <li>That the appeal is dismissed.</li> <li>That the appellant shall bear the costs.</li> </ol> <p>                </p> <p><strong>BHUNU JA:</strong>                                I agree</p> <p><strong>KUDYA AJA:</strong>                             I agree</p> <p><em>Antonio &amp; Dzvetero, </em>the appellant’s legal practitioners.</p> <p><em>Muhlekiwa Legal Practitioners, </em>the 2nd, 3rd and 5th respondent’s legal practitioners.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/81/2021-zwsc-81.doc" type="application/msword; length=75264">2021-zwsc-81.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/81/2021-zwsc-81.pdf" type="application/pdf; length=460360">2021-zwsc-81.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution-pending-appeal">Stay of execution pending appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property-sale">Immovable property (SALE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/instalment-sale-immovable-property-sale">instalment sale (Immovable property (SALE))</a></li></ul></span> Wed, 14 Jul 2021 12:49:02 +0000 Sandra 10079 at https://old.zimlii.org Chibanda And 2 Others v City of Harare (SC 83-21, Civil Appeal No. SC 431/19) [2021] ZWSC 83 (29 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/83 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 83/21</p> <p>Civil Appeal No. SC 431/19</p> <p> </p> <p><strong>REPORTABLE:</strong><strong>       (80)</strong></p> <ol> <li><strong>    DOMBO     CHIBANDA     (2)     PINGO     WILBROAD         KANDORORO     (3)     JOHN     KANDWE</strong></li> </ol> <p><strong>v</strong></p> <p><strong>CITY     OF     HARARE</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABAWE</strong>                                                              </p> <p><strong>HLATSHWAYO JA </strong></p> <p><strong>HARARE: 29 NOVEMBER 2019 &amp; 29 JUNE 2021</strong></p> <p> </p> <p> </p> <p><em>J. Mambara</em>, for the applicants</p> <p><em>T.L. Mapuranga with T.G. Chigudugudze</em>, for the respondent</p> <p> </p> <p><strong>HLATSHWAYO JA:</strong> This is a chamber application for condonation for failing to note an appeal within the prescribed time limits and extension of time within which to note an appeal in terms of r 43 of the Supreme Court Rules, 2018 (the Rules).  The applicants seek an order in the following terms:</p> <ol> <li>The application for condonation for non-compliance with r 38 of the Supreme Court Rules, 2018 be and is hereby granted.</li> <li>The application for extension of time within which to file and serve a notice of appeal in terms of the rules be and is hereby granted.</li> <li>The notice of appeal shall be deemed to have been filed on the date of this order.</li> <li>The costs shall be in the cause.</li> </ol> <p> </p> <p><strong>BACKGROUND</strong></p> <p>The applicants in this matter were employed by the respondent.  In 2014, they received letters notifying them that they were being retired as they had reached the age of sixty years.  At the time the first applicant was sixty-two years, the second applicant sixty-four years and the third applicant sixty-two years.  The first applicant had been in the employ of the respondent for forty years, the second applicant for thirty-five years and the third applicant for twenty-one years.  The letters advised them that they would receive their terminal benefits including three months’ notice and a continued use of their designated company vehicles.  The applicants challenged this retirement by making an application for a <em>declaratur</em> in the High Court (the court <em>a quo</em>).</p> <p> </p> <p>They argued that s 11 (1) of the Local Authorities Employees Principal Pension Scheme, in terms of which they had been retired, did not apply to them as they had passed sixty years.  They argued that since they had been in employment past the age of sixty they could only be retired at the age of sixty-five and that they now had a valid legitimate expectation to be retired at sixty-five since they had gone past the age of sixty without being retired.  They further argued that the pension regulations provided for retirement at the ages of fifty-five, sixty and sixty-five and not in between those ages. </p> <p> </p> <p>Furthermore, according to the applicants, their retirement was discriminatory since other employees who were in similar positions had been retrenched and not retired. In the circumstances the applicants prayed for a declaration to the effect that the purported retirement was a legal nullity and that the respondent was to be ordered to reinstate or retrench them.</p> <p> </p> <p><strong>DETERMINATION OF THE COURT <em>A QUO</em></strong></p> <p>The court <em>a quo</em> noted that the major question for determination was whether or not the respondent’s pension scheme applied to the applicants.  The court found that the applicants’ argument that the pension scheme did not apply to them was without merit. This was because the respondent’s pension scheme was regular and the applicants, by joining the respondent, had accepted to be bound by its pension scheme and according to this scheme the normal retirement age was sixty years.</p> <p> </p> <p>The court further found that the applicants’ argument that the respondent was precluded from retiring them in between the segments of fifty-five years to sixty years and sixty to sixty-five years, lacked merit because nothing in s 11 of the respondent’s pension scheme suggested that. According to the court <em>a quo</em> the applicants’ legitimate expectation that they would not be retired before attaining the age of sixty-five years had no foundation because the pension scheme did not suggest that in any way.</p> <p> </p> <p>The court held that in terms of the respondent’s pension scheme, it was purely at the discretion of the employer for an employee to continue serving after his attainment of sixty years of age and as such there was nothing precluding the respondent from retiring the applicants.  The applicants having gone past the normal age of retirement, the court <em>a quo</em> found that they were serving at the pleasure of the respondent and as such the respondent was entitled to dispense with their services at any time.  The court <em>a quo</em> thus dismissed the application with an order of costs.</p> <p> </p> <p>Aggrieved by that decision, the applicants noted an appeal with this Court on 6 October 2015 under case number SC 549/15.  The applicants failed to pay costs for the preparation of the record and the appeal was deemed abandoned on 6 January 2016.  On 19 March 2019 the applicants filed a chamber application for condonation of late filing of an application for reinstatement of the appeal and extension of time within which to pay costs for the preparation of the record.  However, the application was later withdrawn on the basis that the nature of the relief sought was unascertainable and, subsequently, the application was removed from the roll on 28 May 2019.  Again, a similar application was filed and subsequently withdrawn on 5 July 2019 on the basis that the notice of appeal appended to the application did not comply with r 43(3) as read together with r 37(1) of the Rules.  The applicants then filed the present application for condonation for failing to note an appeal within the prescribed time limit and extension of time within which to note an appeal against the judgment of the court <em>a quo</em>.</p> <p> </p> <p><strong>APPLICANTS’ SUBMISSIONS</strong></p> <p>The applicants’ counsel, Mr <em>Mambara</em>, conceded that the delay was inordinate but, however, submitted that the explanation for that delay was reasonable.  The applicants submitted that the reason for delay was due to the fact that they could not pay the requested costs for preparation of the record the first time they filed the appeal and as a result the appeal was deemed lapsed.  The reason for the failure to pay the costs according to the applicants was because they could not afford to provide the same since the respondent had not paid their salaries which would have enabled them to pay the costs.  It was the applicants’ case that by the time they received money from the respondent, the appeal had already lapsed.</p> <p> </p> <p>The applicants also attributed their failure to note the appeal on time to wrong advice from their erstwhile legal practitioner who notified them that since their appeal had been deemed abandoned this marked the end of their appeal.  It was the applicants’ case that being laymen they thought this meant there was no other way their matter could be heard by this Court.  They also averred that the case of <em>Nyamande &amp; Anor v Zuva Petroleum (Pvt) Ltd &amp; Anor</em> 2015 (2) ZLR 186 (S) discouraged them from prosecuting their appeal.  The applicants thus submitted that, faced with the wrong legal advice and the <em>Zuva</em> judgment, they thought that they had no recourse whatsoever.</p> <p> </p> <p>According to the applicants it was the success of their colleague’s case, <em>Mubvumbi v City of Harare</em> SC 64/18 which prompted them to file an application for condonation for failing to note an appeal within the prescribed time limit and extension of time within which to note an appeal.</p> <p> </p> <p>On the prospects of success, the applicants’ counsel argued that their appeal had bright prospects of success because the <em>Mubvumbi</em> judgment, which was allegedly on all fours with the circumstances of their case, had been successful before this Court and as such they expected the same for their case.  The applicants further submitted that the matter was important in that it related to administrative justice.  They argued that, since they had served the respondent for a long time, their discharge with immediate effect amounted to arbitrary dismissal.</p> <p> </p> <p><strong>RESPONDENT’S SUBMISSIONS</strong></p> <p>The respondent’s counsel submitted that even though the applicants had admitted that the delay was inordinate, they had omitted to disclose that the degree of non-compliance was extremely long - three years and nine months.  The respondent further argued that the applicants’ reasons for delay had no merit and their numerous applications were an abuse of court process.  Mr<em> Mapuranga</em>, for the respondent, further noted that the applicants’ averments that they did not have money to pay costs were false because they managed at the same time to raise substantially higher fees to brief and pay counsel for legal opinions and, in any case, they had an option to proceed <em>in forma pauperis</em> but they did not, thus making their explanation unreasonable.</p> <p> </p> <p>The respondent further argued that the applicants’ case was distinguishable from the <em>Mubvumbi</em> case and the fact that the applicants took time to approach this Court, even after the <em>Mubvumbi</em> case, shows that they have no prospects of success.  He further submitted that the applicants should have attached an affidavit from their legal practitioner showing that he had given them wrong advice and failure to do so weakened their reason for the delay in noting the appeal.  Mr <em>Mapuranga</em> also argued that the applicants appeal was supposed to stand or fall on their grounds of appeal yet they had failed to motivate the grounds and demonstrate the prospects of success on appeal.  As such it was the respondent’s submission that the applicants had failed to show cause why they should be granted condonation and extension of time within which to note their appeal.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>It is a trite principle of law that a party who fails to comply with the rules of this Court must apply for condonation and give adequate reasons for his or her failure to comply with the rules.  Rule 38 (1) (a) states that:</p> <p>“(1) An appellant shall institute an appeal within the following times- </p> <ol> <li>By filing and serving a notice of appeal in compliance with subrule (2) of r 37 within 15 days of the date of the judgment appeal against.” </li> </ol> <p> </p> <p>Condonation is not simply granted by virtue of the mere fact that a party has sought it.  This was emphasized by ZIYAMBI JA in <em>Zimslate Quartize (Pvt) Ltd &amp; Ors v Central African Building Society</em> SC 34/17 as follows at p 7 of the cyclostyled judgment:</p> <p>“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction.  He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.  An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”</p> <p> </p> <p>The factors to be considered by the court were outlined by BHUNU JA in <em>Mzite v Damafalls Investment (Pvt) Ltd &amp; Anor</em> SC 21/18, where he expressed the following at p 2 of the cyclostyled judgment:</p> <p>“The requirements for an application of this nature to succeed are well known as outlined in the case of <em>Kombayi v Berkout </em>1988 (1) ZLR 53 (S).  These are:</p> <ol> <li>The extent of the delay;</li> <li>The reasonableness of the explanation for the delay; and</li> <li>The prospects of success on appeal.”</li> </ol> <p> </p> <p>Condonation is thus an indulgence granted when the court is satisfied that there is “good and sufficient cause” for condoning the non-compliance with the rules.  Good and sufficient cause is assessed by considering, cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicants’ case on appeal, or the prospects of its success.  See <em>Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd &amp; Anor</em> SC 58/18.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <ol> <li><strong>The extent of the delay and reasonableness of the explanation.</strong></li> </ol> <p>The applicants ought to have noted their appeal fifteen days after 24 September 2015, being the date the judgment appealed against was handed down.  They were thus required to note their appeal by 16 October 2015.  The applicants initially noted their appeal timeously on 6 October 2015 but the appeal was deemed abandoned after they failed to pay costs for the preparation of the record.  From the time the appeal was deemed abandoned to the time this application for condonation of failing to note an appeal within the prescribed time limits and extension of time within which to note an appeal was filed, a period of three and a half years had lapsed.  Such a long delay is indeed inordinate, as correctly conceded.  Three and a half years is too substantial a period for a litigant to do nothing.</p> <p> </p> <p>As an explanation for the delay, the applicants contend that they failed to pay the requested costs for the preparation of the record of appeal because they were unable to secure the necessary funds.  The reason proffered by the applicants for failure to make an application for reinstatement of their appeal after it had been deemed abandoned is because of the wrong advice which they purportedly received from their legal practitioner.  The wrong advice of the applicants’ erstwhile legal practitioners, which is pleaded by the applicants, cannot be accepted as a reasonable explanation.  The applicants cannot blame their legal practitioners of choice for their misfortune.</p> <p> </p> <p>In <em>Kodzwa v Secretary for Health &amp; Anor</em> 1999 (1) ZLR 313 (S) at 317E, SANDURA JA cited with approval STEYN CJ in <em>Saloojee and Another v Minister of Community Development</em> 1965 (2) SA 135(A) at 141 C-E wherein the court stated:</p> <p>“I should point out however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney.  There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered.  To hold otherwise might have a disastrous effect upon the observance of the rules of this Court. Considerations <em>ad misericordiam</em> should not be allowed to become an invitation for laxity.  In fact, this Court has been lately burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this Court was due to negligence on the part of the attorney.  The attorney after all is the agent whom the litigant has chosen for himself, and there is little reason why, in regard to condonation for failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship.”</p> <p> </p> <p>As such the applicants cannot seek to escape the consequences of their actions to timeously note their application for condonation by blaming their legal practitioner.  It would have been prudent if the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, then this Court would be in a position to decide whether the applicants should not be visited with the sins of their legal practitioners.  See <em>Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa </em>2010 (1) ZLR 267 (S).  The delay of three and a half years which the applicants took to make a proper application for condonation of late filing of an appeal is clearly inordinate and the reason offered by the applicants for such delay cannot be accepted as a reasonable explanation.</p> <p> </p> <p>The applicants submitted that they were prompted to make the present application because of the success of the <em>Mubvumbi</em> case which they felt was on all fours with the circumstances of their case.  Clearly this reasoning does not justify the granting of condonation because litigants cannot wait to be prompted by a favourable decision before they make their own applications.</p> <p> </p> <p>When a party brings an unsavoury situation upon himself by taking a lackadaisical approach to litigation in which he is involved and showing utter disinterest for a long time, the arrival of the day of reckoning does not create a calamity in respect of which the court should drop everything in order to give him audience.  Those are the consequences of being a sluggard and in the present case the court is unmoved as it does not ordinarily come to the rescue of the indolent.  See <em>Ndebele v Ncube</em> 1992 (1) ZLR 288 (S).  The reasons offered by the applicants for such delay are not sufficient to enable this Court to grant the applicants condonation and extension of time within which to note an appeal.  The delay is clearly unjustified and cannot be the kind of delay occasioned by a party who has a serious intention to prosecute his appeal.</p> <ol> <li><strong>The prospects of success on appeal.</strong></li> </ol> <p>It is settled that where no acceptable explanation for non-compliance with the rules has been given, an applicant for condonation must at least show very good prospects of success.  See <em>Mahachi v Barclays Bank of Zimbabwe</em> SC 6/06.  The applicants are required to show that they have an arguable case on appeal as was noted by the court in <em>Essop v S</em> (2014) ZASCA 114, where the court stated the following at para 6:</p> <p>“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.  In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.  More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless.  There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”</p> <p> </p> <p> </p> <p> It is settled law that the applicant’s case stands or falls on the founding affidavit.  See <em>Austerlands (Pvt) Ltd v Trade and Investments Bank Ltd &amp; Ors</em> 2006 (1) ZLR 372 (H).  In their founding affidavits the applicants only alluded to but did not demonstrate any prospects of success on appeal.  They just stated that their appeal has bright prospects of success because it is similar to the <em>Mubvumbi</em> case which was successful.  That cannot possibly be a clear and sufficient articulation of prospects of success and clearly does not satisfy the requirements of the law.  The applicants could not sit on their rights for years until a favourable appellate decision was handed down and then claim to be diligent in pursuing their rights so that they can take advantage of that favourable decision. </p> <p> </p> <p>In any event, the grounds of appeal themselves are afflicted by such defects that they do not even meet the strict threshold fixed by the Rules for valid grounds of appeal.  The grounds of appeal are not clear and concise as is required by r 4(1) of the Rules.  It is trite at law that grounds of appeal must be clearly set out to enable the court and the respondent to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet.  Anything that falls short of that is improperly before the court.  See <em>Econet Wireless (Pvt) Ltd v TrustCo Mobile (Proprietary) Ltd &amp; Anor</em> SC 43/13.</p> <p> </p> <p>It appears from the grounds of appeal that the applicants are aggrieved by the factual findings of the court <em>a quo</em>.  It was stated in <em>Nzira v The State</em> SC 23/06 that an appeal court is very unlikely to go against factual findings of the trial court which had the opportunity to listen to and actually see the witnesses and observe their demeanour when giving evidence.  The appeal court will only interfere where it is shown that there was a clear misdirection on the part of the trial court which has not been demonstrated in this case. </p> <p> </p> <p>Considered cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal, it is clear that the Court cannot extend the indulgence of condonation in these circumstances and, therefore, this application cannot succeed. Costs in this case should follow the outcome, nothing having been sufficiently advanced to the contrary.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>Accordingly, it is ordered that the application be and is hereby dismissed with costs.</p> <p> </p> <p><em>J Mambara and Partners</em>,applicant’s legal practitioners</p> <p><em>Chihambakwe, Mutizwa &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/83/2021-zwsc-83.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35947">2021-zwsc-83.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/83/2021-zwsc-83.pdf" type="application/pdf; length=449893">2021-zwsc-83.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urban-council-employees">urban council employees</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-employment">Termination of employment</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/43">Nyamande &amp; Another v ZUVA Petroleum (Pvt) Ltd (SC 281/14) [2015] ZWSC 43 (16 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2018/64">Mubvumbi v City of Harare (SC 64/18, Civil Appeal No. SC 1079/17) [2018] ZWSC 64 (22 October 2018);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2017/34">Zimslate Quartzite (Pvt) Ltd. &amp; Others v CABS (SC 34/2017 Chamber Application No. SC 82/17) [2017] ZWSC 34 (10 May 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/21-0">Mzite v Damafalls Investments (Private) Limited &amp; Another (SC 21/18, Civil Appeal No. SC 89/16) [2018] ZWSC 21 (23 June 2016);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/58">Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited &amp; Another (SC 58/18, Civil Appeal No. 411/17) [2018] ZWSC 58 (26 September 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div></div></div> Wed, 14 Jul 2021 09:34:55 +0000 Sandra 10077 at https://old.zimlii.org Kereke v Maramwizde And Another (SC 86/21, Chamber Application No. SC 581/20) [2021] ZWSC 86 (08 July 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/86 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 86/21</p> <p>Chamber Application No. SC 581/20</p> <p> </p> <p><strong>DISTRIBUTABLE</strong><strong>:             (83)</strong></p> <p> </p> <p><strong>MUNYARADZI     KEREKE</strong></p> <p><strong>v</strong></p> <ol> <li><strong>FRANCIS      MARAMWIDZE     (2)     THE      PROSECUTOR      GENERAL</strong></li> </ol> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKONI JA</strong></p> <p><strong>HARARE: 19 MAY 2021 &amp; 8 JULY 2021</strong></p> <p> </p> <p><em>T.W. Nyamakura</em> with <em>L. Madhuku</em>, for the applicant</p> <p><em>C. Warara</em>, for the first respondent</p> <p> </p> <p>No appearance for the second respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>CHAMBER APPLICATION</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>MAKONI JA</strong>:     This is an opposed application for leave to appeal made in terms of s 44 of the High Court Act [<em>Chapter 7:06</em>] as read with r 20 (1) of the Supreme Court Rules, 2018.</p> <p> </p> <p> The applicant was convicted of rape and sentenced to an effective 10 years imprisonment by the Harare Regional Court on 11 July 2016. His appeal against conviction and sentence was dismissed by the High Court on 29 May 2019. He sought leave to appeal to this Court, against the dismissal of his appeal, before the High court which leave was declined on 10 December 2020 hence the present application.</p> <p> </p> <p><strong>FACTUAL BACKGROUND </strong></p> <p>The applicant was arraigned before the magistrates' court charged with one count of indecent assault and one count of rape. The offences were allegedly perpetrated on two minor children who were his nieces.  He was acquitted in respect of the first count of indecent assault.</p> <p> </p> <p>The second count of rape is alleged to have occurred on 22 August 2010, at 11 Tavey Road, <a name="_Hlk67167814" id="_Hlk67167814">Vainona</a>. The complainant and her sister (the complainant in count one) had visited their aunt Patience Muswapadare (Patience) who is a wife to the applicant. The complainant’s evidence was that on the day in question, at around 3 am, Patience woke her up and asked her to tend to her (Patience’s) baby. This was because Patience wanted to prepare some food for the applicant. After she lulled the baby to sleep she sat on a couch in the bedroom. The applicant, whom she had met in the lounge, came up to her on the couch. He fondled her breasts and vagina, produced his pistol and raped her. He only stopped after hearing some footsteps.  The complainant managed to break free and went to her bedroom. She did not feel comfortable to report to Patience. She reported the ordeal to her sister the following day on 23 August 2010. The sister had spent the night at an all-night prayer. She forbade her from telling anyone because she was not comfortable sharing the experience with other people. Eventually, on 30 October 2010, the complainant voluntarily confided in her maternal uncle’s wife, Sally Ndanatsei Maramwidze, about the rape.  Thereafter other relatives were informed. On the same day the matter was reported to the police at Highlands Police Station. The complainant was medically examined at Parirenyatwa hospital on 1 November 2010. The report indicated that the hymen was broken.</p> <p> </p> <p>Apart from the complainants, the state led evidence from  Sally Ndanatsei Maramwidze (to whom the report of the rape was made), Francis Maxwell Maramwidze (maternal grandfather and legal guardian of the complainants to whom the allegations were later reported and who approac<a name="_Hlk67170014" id="_Hlk67170014">hed the police), Edwin Tafadzwa Chanakira </a>(the doctor who examined the complainant and found that her hymen had been broken which was indicative of sexual penetration), Mirirai Chiremba (the Director of Financial Intelligence at the Reserve Bank of Zimbabwe to whom the applicant gave his pistol, magazine and cleaning kit on 22 August 2010 to return to RBZ Security Department and requested that an earlier date of return be entered),  Grasham Muradzikwa (the Director of Security <a name="_Hlk67166774" id="_Hlk67166774">at the Reserve Bank of Zimbabwe</a> who refused to take the applicant’s firearm from Mirirai or backdate it to a particular date) and Monica Kativhu (the police officer at Borrowdale Police Station who recorded statements from the complainants).</p> <p> </p> <p>The defence’s case was led by the applicant who raised the defence of an <em>alibi</em>. He said that he was at his Mandara house with his brother Cletos Kereke at the time the alleged offence was committed.  He had witnesses to support his testimony. He also denied influencing the backdating of the return of his firearm.  He claimed that he had surrendered it on 14 June 2010, way before the allegations against him were levelled. The applicant claimed that the complainant’s grandparents were trying to extort him for his refusal to pay the complainants’ school fees. Gideon Gono and his counterparts wanted to silence him against revealing their fraudulent activities and also that there were political machinations against him by Webster Shamu and others.</p> <p> </p> <p>The second defence witness Patience Muswapadare Taruvinga, wife to the applicant, testified that complainant’s testimony was untruthful. The third witness, Alphios Njodzi Chinhano, pointed to friction between the applicant and Francis Mwaramwidze because of political ambition. Next to testify was Cletos Kereke, who corroborated the applicant’s testimony that at the alleged time of the offence, he and the applicant were in Mandara. Taurai Bwanalisa and Norest Ndoro testified that they were security guards on duty at the Mandara house.  They recorded the applicant’s visit on 20 August 2010 but disputed the authenticity of the extract produced from the occurrence book in court. Anna Muswapadare, mother in law to the applicant and a stepmother to the complainants’ father, attested that she shared the bedroom with the complainant during the material time and that she could not have been raped.</p> <p> </p> <p>                   Dr Chiratidzo Lorraine Jeyacheya, a medical doctor and head of the Casualty and Emergency department was called at the court’s instance and confirmed that Dr Chanakira was on duty at the time of the examination. The applicant had disputed that Dr Chanakira was on duty on the date the complainant was examined.</p> <p> </p> <p>After an analysis of the evidence before it, the trial court convicted the applicant of rape. The court found that it had been proven beyond reasonable doubt that the applicant raped the complainant. The court reasoned that the complainant’s report was voluntary, she gave a reasonable explanation as to why she did not report the case in time and that she was able to give a clear account of the circumstances of the alleged rape. It further found that her testimony was corroborated by Sally Ndanatsei Mwaramwidze and Francis Mwaramwidze. The court found insignificant the discrepancy in her narration in the applicant’s use of a gun. It found that Chanakira who examined the complainant was indeed on duty on 1 November 2010. It also found that the applicant still had the gun in his possession on 22 August 2010. The court concluded that the allegations were not as a result of fabrications by the Mwaramwidze family or political machinations. It found that the applicant had lied concerning his possession of the gun, backdating its return, coaching of the witnesses and an unconvincing explanation that he was with Cletos in Mandara.</p> <p> </p> <p> </p> <p>In sentencing the applicant the court took into account the mitigating and aggravating circumstances and sentenced him to an effective 10 years imprisonment.</p> <p> </p> <p>The applicant noted an appeal to the court <em>a quo</em> against his conviction and sentence which was dismissed in its entirety. The court found that the trial court properly assessed the evidence and correctly found that the applicant’s guilt had been proven beyond reasonable doubt. It found that the trial court properly assessed complainant’s evidence and found that her detailed account of the rape and her voluntary report which was corroborated by Dr Chanakira’s medical report met the threshold of proof beyond reasonable doubt. It also discarded the applicant’s defence of impossibility of the <em>actus reus</em> whereby he contended that raping the complainant on a couch was impossible, as invalid. The court <em>a quo</em> also found that the trial court properly disregarded the applicant’s testimony regarding the return of his pistol as his version was only corroborated by a document which he had authored and forced Chiremba to co-sign. Further, that there was an anomaly in the defence witnesses’ evidence as their statements, in affidavit form, were commissioned by one legal practitioner and were given on the same date. The possibility of coaching in these circumstances could not be ruled out.</p> <p> </p> <p>As regards sentence, the court found that the trial court properly exercised its discretion in weighing aggravating and mitigating circumstances and that the sentence imposed was within the range imposed in similar cases. The court held that the decision of the Magistrates Court could not be faulted. It was the court’s view that the applicant as an adult and relative of the minor child was expected to protect her and not abuse her.</p> <p> </p> <p> </p> <p>Aggrieved by the High court’s dismissal of his appeal, the applicant sought leave to appeal to this Court from the High Court. The court <em>a quo</em> found that the appeal did not have reasonable prospects of success. The factual disputes were thoroughly determined. It found that the trial court properly dismissed the applicant’s defence of <em>alibi </em>after rejecting the defence witnesses’ testimonies on the basis that they had been coached. The court reasoned that there was a remarkable coincidence in that their affidavits, in which they exonerated the applicant, were commissioned before the same legal practitioner under circumstances where they claimed to have gone to the legal practitioner separately and all were recorded on the same day.   The court also held that the applicant’s <em>alibi</em> was choreographed as the guards at his Mandara house could not corroborate the applicant’s testimony as they disowned certified extracts of an occurrence book produced in court. Further, that the applicant would visit his Mandara house where none of his family were staying. He visited with his brother who then becomes a defence witness attesting to his <em>alibi</em>. It also found that the surrender of the pistol a few hours after the rape was not mere coincidence.</p> <p> </p> <p>As regards the sentence, the court found that the sentence imposed was amply justified and the trial court properly exercised its discretion.</p> <p> </p> <p> It is against this background that the present application has been made.</p> <p> </p> <p><strong>SUBMISSIONS BY THE APPLICANT</strong></p> <p>Mr <em>Nyamakura</em> submitted that the applicant has reasonable prospects of success on appeal as the court <em>a quo</em>, in dismissing his appeal, erred in failing to consider and place in their proper context material misdirections that saddle the decision of the trial magistrate. He raised four main areas of concern <em>viz</em> the impossibility of the <em>actus reus</em>, the inconsistencies in the complainant’s evidence, the rejection of his defence of an <em>alibi</em> and the finding that defence witnesses were coached on what to say in court.</p> <p> </p> <p>On the issue of the impossibility of the <em>actus reus</em> Mr <em>Nyamakura</em> submitted that it was physically impracticable that the applicant could have raped the complainant in the manner alleged.  The panty which the complainant claimed could stretch was not produced. Her reaction is not one objectively expected under such circumstances. She claims to have been raped at 3 am after having been woken up by Patience to tend to her baby. Patience testified that on the night in question she was not at home as she was at Avenues Clinic where her baby was admitted. No proper reasons were given for rejecting her evidence. There was also evidence of Anna Muswapadare, who shared a bedroom with her to the effect that the complainant was in bed and asleep at the material time. The failure by the court <em>a quo</em> to consider, in its proper context, the impossibility of the facts presented by the prosecution is material. Instead the court characterised the applicant’s arguments on impossibility as exhibiting male chauvinism and patriarchy.</p> <p> </p> <p>Mr <em>Nyamakura</em> further argued that evidence led by the prosecution lacked consistency in material respects to warrant reasonable doubt. There was no consistency on the issue of the gun, the time the offence was committed and the reason why the complainant did not report the issue to the trusted adults at the first available opportunity. The court <em>a quo</em> erred and misdirected itself in failing to, in totality, find that the inconsistencies in the prosecution’s version of events as well as the improbability of the same cast significant doubt on the truthfulness of the complainant’s allegations.</p> <p>                                                                                                                                                                                                                                                                                                                                                             Further, Counsel contended that the court failed to fully consider the applicant’s defence of an <em>alibi</em>. The <em>onus</em> remained on the prosecution to establish that the explanation was not only improbable but that beyond any reasonable doubt it was false. The applicant asserted that he was not at his Vainona home at the time of the alleged rape. He called witnesses and the consistent thread in all their testimonies was that the applicant could not have committed the offence as he was not at the scene of the offence. Two of the witnesses were security guards who were no longer in the employ of the applicant at the time of the trial and had no motive to lie.</p> <p> </p> <p> Mr <em>Nyamakura</em> further submitted that the trial court proceeded from the premise that the <em>alibi </em>witnesses who testified in respect to the applicants <em>alibi </em>were coached. It made such findings without direct evidence as to when, where and by whom they were coached. It relied on inferences without applying the test to justify drawing such an inferences. There was no evidence at all suggesting that the witnesses were coached. Coaching is a positive act and the prosecution did not lead evidence on the form, manner and timing of such coaching.</p> <p> </p> <p>Mr <em>Nyamakura</em> attacked the court <em>a quo</em> for making a finding that the security guards had a motive to lie in order to protect their boss. The finding was made in 2016 when both guards were no longer employed by the applicant.</p> <p> </p> <p>Mr <em>Nyamakura </em>further submitted that the court <em>a quo</em> erred in accepting Mirirai Chiremba’s evidence that he was made to sign a memo, backdating the return of the gun, under duress by the applicant when there was no documentation confirming the return of the gun by the applicant on the date so alleged.  He (Chiremba) failed to explain why he kept the gun in his office from August 2010 until the trial of the accused in 2016 in circumstance where the applicant had ceased to be his supervisor.</p> <p> </p> <p>No submissions were made in respect of leave to appeal against sentence. I will take it that the applicant has abandoned the issue.</p> <p> </p> <p><strong>SUBMISSIONS BY THE FIRST RESPONDENT</strong></p> <p>Mr <em>Warara</em> submitted that the intended appeal does not have reasonable prospects of success on appeal.</p> <p> </p> <p>               Regarding the impossibility of the act of rape, Mr <em>Warara</em> submitted that the complainant gave a cogent explanation of how the rape was committed. Her evidence was not successfully challenged under cross examination. There was also medical evidence to prove penetration. Thus the averments relating to the absence of <em>actus reus</em> are misplaced.</p> <p> </p> <p>He further argued that the trial court satisfactorily related to the alleged inconsistencies in the prosecution’s case.  He also submitted that the trial court properly dealt with the issue of credibility of witnesses and the threshold of proof beyond reasonable doubt in a balanced manner.</p> <p> </p> <p>                        Mr <em>Warara</em> further submitted that the court dealt with the issue of the applicant's <em>alibi </em>and rejected it as the defence witnesses credibility failed during cross-examination. The record is replete with proof beyond a reasonable doubt that the applicant’s <em>alibi</em> was not true. There was the evidence of the security guards who disowned the entry in the occurrence book. It recorded only the applicant’s movements. There was the evidence of Chiremba who met with the applicant at Chisipite Shopping Centre on the morning of the rape. The applicant failed to explain why he handed over the gun on a Sunday.</p> <p>                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               </p> <p><strong>THE LAW </strong></p> <p>The factors which must be considered in an application of this nature were discussed in the case of <em>Chikurunhe v Zimbabwe Financial Holdings </em>SC 10-08 at p 5where the Court held that:</p> <p>“The party seeking leave must show inter alia that he has prospects of success on appeal.  In other words, leave is not granted simply because a party has sought such leave.”</p> <p> </p> <p>Therefore, it is important to assess whether or not the appeal has good prospects of success.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>The applicant’s grounds of appeal are an attack on the factual findings of the trial court and its assessment of the credibility of witnesses. In confirming the applicant’s conviction, the court <em>a</em> <em>quo</em> found these findings to be rational. The questions of whether or not the applicant was at the Mandara residence at the time of the offence, or whether the defence witnesses were coached and whether the applicant used the gun in the commission of the offence are enquiries of fact. It is trite that an appellate court is slow to interfere with the factual findings of a lower tribunal. The circumstances under which this Court will interfere with the findings <em>a quo</em> was clearly enunciated by this Court in <em>RBZ v Granger &amp; Anor  SC 47/09 </em>as follows:</p> <p>“There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.” (See also <em>Zvokusekwa v Bikita Rural District Council </em>SC 34/15)</p> <p> </p> <p> In <em>Zimre Property Investments Ltd v Saintcor (Pvt) Ltd t/a vTrack &amp; Anor SC 59-16 p 11 para 36 </em>it was held that:</p> <p>“The position is now settled that an appellate court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion that the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion.  Where there has been no such misdirection, the appeal court will not interfere.  This position was aptly captured by this court in <em>Hama v National Railways of Zimbabwe</em> 1996 (1) ZLR 664 (s).  At 670, Korsah JA remarked:</p> <p>“The general rule of law as regards irrationality is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion…”</p> <p> </p> <p>It is also an established principle that an appellate court is slow to interfere with the findings of credibility of the witnesses by a lower tribunal. This principle was well captured in the case of <em>Gumbura v The State</em> SC 78/14 at p 7 where the Court remarked as follows:</p> <p>“As regards the credibility of witnesses, the general rule is that an appellate court should ordinarily be loath to disturb findings which depend on credibility. However, as was observed in <em>Santam BPK v Biddulph</em> (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 overemphasised. Moreover, <a name="_Hlk67400603" id="_Hlk67400603">findings of credibility must be considered in the light of proven facts and probabilities.”</a></p> <p> </p> <p> </p> <p>                                                                                                             </p> <p>       I want to zero in on how the trial court dealt with the evidence of the defence witnesses. The applicant raised the defence of an <em>alibi</em>. He led evidence from witnesses in support of his defence that he was not at his Vainona home on the date and time when the alleged rape was committed.</p> <p> </p> <p> </p> <p> The trial court in dealing with the evidence of defence witnesses stated that the credibility of the witnesses in question was attacked by the prosecution mainly on the ground that they had been coached by the applicant on what to say. The other ground of attack on the credibility of Cletos Kereke, Anna Muswapadare and Patience Muswapadare was that their statements were all commissioned by the same legal practitioner on the same day.</p> <p> </p> <p>It is common cause that the statements of Cletos Kereke, Patience Muswapadare, Anna Muswapadare, Vincent Muswapadare, were all sworn to on 10 August 2010 and were commissioned by a legal practitioner by the name <em>Takudzwa L. Takawira</em>.  These four witnesses stated that they were called to a police station in Borrowdale on 10 November 2010 and the police interviewed them on this matter.  As they were giving their answers the police were typing out and after that the police then gave them the statements to go and have them commissioned by a commissioner of oath of their choice.  They said that they did not meet each other at Borrowdale police station neither did they meet at <em>Takudzwa L</em>. <em>Takawira </em>Chambers.  Each of them independently went into town to have his or her statement commissioned and by coincidence they all found themselves at <em>Takudzwa L. Takawira’s </em>office at different times.<br />  </p> <p> The trial magistrate found this amiss. There was no satisfactory explanation as to why the police would record their statements in affidavit form and refer them for commissioning elsewhere when they could have commissioned them as they did with the applicant’s affidavit. He further found that it could not be coincidence that all the witnesses independently got into town and ended up at the offices of the same legal practitioners for commissioning of their affidavits. He concluded by stating:</p> <p><strong>“</strong>The above proves to me beyond any reasonable doubt that these witnesses were lying as regards how their statements were recorded and commissioned.  There is no other reason for lying on these aspects other than that their statements were pre-recorded before these witnesses went to the police.  Even accused’s affidavit statement was pre-recorded  this is clear from the declaration by the officer in charge who recorded the statement and I quote “I certify that the above statement was made freely and voluntarily by MUNYARADZI KEREKE who was in his sound and sober senses and tendered his prepared affidavit statement through his legal practitioner Tawanda Herbert Chitapi. </p> <p>The question is why these witnesses would pre-record their statements before they went to police and why they would lie about this fact to the court.  There is only one reasonable conclusion that someone influenced them on what to write in the statements and they did not want the court to know about the fact, only reasonable conclusion is that accused is the one who influenced them.  I draw the above inference because that is the only reasonable inference which can be drawn from the proved facts which I have stated above see <em>S v Marange and others 1991(1) ZLR 244 SC,R v Vhera 2003(1) ZLR 668.</em></p> <p><strong>See also<em> Schwikkard at </em>p 530 also<em> S v Vhera </em>2003(1) ZLR<em> 668</em></strong></p> <p>I therefore agree with the prosecution’s submission that the witnesses mentioned above were influenced on what to say.  The court should therefore never put any reliance on influenced witnesses.  It is clear accused influenced them.  This will also tend to support complainant’s case that she is telling the truth see <strong><em>S v Chigwada</em>  S-206-88, S v Katerere-s-55-91.”</strong></p> <p> </p> <p> </p> <p>The court <em>a quo</em> found that the trial court’s finding that the applicant was not at the Mandara residence on the day in question was unassailable. It found that the trial court after a careful and detailed analysis of the defence witnesses’ evidence properly rejected the defence of the <em>alibi </em>as false. The defence witnesses’ testimony was properly rejected on the basis of the anomaly that the statements were commissioned by one lawyer on the same date. That was proof of coaching.</p> <p> </p> <p> The applicant’s complaint is that the trial court rejected the <em>alibi </em>witnesses’ evidence on the basis that they were coached when there was no direct evidence of that. It relied on inferences without applying the laid down test. That their evidence being  in affidavit form and having been commissioned by the same legal practitioner is evidence of coaching is so shocking that no other court would arrive at the same decision, so it was contended.</p> <p> </p> <p>The test for the proper use of   circumstantial evidence was laid down in <em>R v Blom</em> 1939 AD 188 at 202-203 (quoted with approval in <em>Moyo v The State</em> SC 65/13) where it was stated:</p> <p>“In reasoning by inference there are two cardinal rules of logic which cannot be ignored: (1) The inference sought to be drawn must be consistent with all the proved facts.  If it is not, the inference cannot be drawn. (2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.  If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”  </p> <p> </p> <p> </p> <p>A court intending to rely on such evidence must ask itself a few questions. The first one is what the proved facts are. In <em>casu</em> if the trial court had asked itself the above question it might have arrived at a different conclusion. The prosecution did not lead evidence to controvert the position stated by the defence witnesses regarding the recording of their statements. The issue arose during the cross-examination of the defence witnesses. The prosecution had not laid a basis for putting in issue what the defence witnesses said happened.</p> <p> </p> <p>As was correctly submitted by Mr <em>Nyamakura</em> coaching is a positive act. Evidence has to be led as to the form, manner and timing of such coaching. In <em>casu</em> no such evidence was led. It appears the finding that the witnesses were coached was not based on demeanour but on probabilities. The Supreme Court, in such a situation, will be in the same position as the trial court regarding the drawing of the pertinent inferences. The point was made in <em>Minister of Safety and Security and Others</em> v <em>Craig &amp; Others NO</em> 2011 (1) SACR 469 (SCA) at para 58 where the following was stated:</p> <p>“Although courts of appeal are slow to disturb findings of credibility, they generally have greater liberty to do so where a finding of fact does not essentially depend on the personal impression made by a witness’ demeanour, but predominantly upon inferences and other facts, and upon probabilities.  In such a case a court of appeal, with the benefit of the full record, may often be in a better position to draw inferences,”</p> <p> </p> <p> </p> <p>In my view this is the situation that pertains in <em>casu</em>. The trial court rejected the evidence of the defence witnesses mainly on the basis of inferences and probabilities and not on the basis of their demeanour. The Supreme Court, with the benefit of the full record, may well be in a better position to draw the suitable inferences.</p> <p> </p> <p>    </p> <p>The test to be used in considering the plausibility of the defence of <em>alibi</em> was stated in <em>R v Hlongwane</em>  1959 (3) SA 337 (AD) in that case, HOLMES AJA had this to say at 340H: -</p> <p>“The legal position with regard to an <em>alibi</em> is that there is no <em>onus</em> on an accused to establish it, and if it might reasonably be true he must be acquitted.  <em>R v Biya</em> 1952 (4) SA 514 (AD). But it is important to point out that in applying this test, the <em>alib</em>i does not have to be considered in isolation.” (emphasis added)</p> <p> </p> <p> </p> <p>Further on at 341 A-B the court held:-</p> <p>“The correct approach is to consider the <em>alibi </em>in the light of the totality of the evidence in the case, and the Court’s impressions of the witnesses. In <em>Biya’s</em> case <em>supra</em> GREENBERG JA said at p 521:</p> <p> </p> <p>‘… if on all the evidence there is a reasonable possibility that this <em>alibi</em> evidence is true it means that there is the same possibility that he has not committed the crime’.”</p> <p> </p> <p> </p> <p>Applying that test to the facts of the present case the question is whether there is a reasonable possibility that the <em>alibi </em>evidence is true. This is an aspect where the applicant might have prospects of success. However whether or not the success of his argument on this specific aspect will have the effect of upsetting his conviction is a matter that I am inclined to leave for  determination by the Supreme Court. I am loathe to pronounce on it as a single judge in chambers. For that reason <strong>alone</strong> I am inclined to grant the applicant the relief that he seeks so that the Supreme Court determines the impact, if any, of this particular aspect of his argument, on the propriety of his conviction.</p> <p> </p> <p> </p> <p>Accordingly I make the following order:</p> <ol> <li>The applicant is granted leave to appeal against the decision of the High Court under judgment HH 374/19, to the Supreme Court.</li> <li>No order is made as to costs.</li> </ol> <p> </p> <p> </p> <p><em>Lovemore Madhuku Attorneys, </em>applicant’s legal practitioners</p> <p><em>Warara &amp; Associates</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/86/2021-zwsc-86.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=52534">2021-zwsc-86.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/86/2021-zwsc-86.pdf" type="application/pdf; length=589252">2021-zwsc-86.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/right-appeal-0">right of appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/leave-appeal">Leave to appeal</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2008/44-0">Chikurunhe and Others v Zimbabwe Financial Holdings ( SC 10/08 ) [2008] ZWSC 44 (19 May 2008);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2015/44-1">Zvokusekwa v Bikita RDC (SC 211/13) [2015] ZWSC 44 (21 July 2015);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/78">S v Gumbura (SC 349/14) [2014] ZWSC 78 (15 October 2014);</a></div></div></div> Wed, 14 Jul 2021 08:36:32 +0000 Sandra 10076 at https://old.zimlii.org S v Tichawangana (HB 126/21, HCA (COND) 63/19 XREF CRB R368/17) [2021] ZWBHC 126 (01 July 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/126 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DOMINIC TICHAONA TICHAWANGANA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 1 JULY 2021</p> <p> </p> <p><strong>Application for condonation for late noting of an appeal</strong></p> <p> </p> <p>Applicant in person</p> <p><em>B Maphosa, </em>for the state</p> <p>z</p> <p>                <strong>MAKONESE J:        </strong>This is an application for the late noting of an appeal.  The application is opposed by the state on the grounds that there are no reasonable prospects of success.  Further and in any event, there are no recognizable grounds of appeal in the application and no reasonable explanation has been advanced for the failure to note the appeal timeously.</p> <p>            It is a well established principle of our law that in an application for condonation for the late noting of an appeal, the application must show <em>ex facie</em>, the grounds of appeal and the explanation for the delay.  Condonation is not a formality and the courts will not indulge an applicant who does not make full disclosure of the basis of the application.  In recent times, there has been an upsurge in applications of this nature. While every litigant enjoys the right to seek condonation, the courts should not be flooded with countless applications for condonation with no merit.  This is an abuse of court process and the court must emphasise that only deserving cases for condonation for non-compliance with the rules of court will be entertained.</p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>            The applicant appeared before a Regional Magistrate at Tredgold, Bulawayo on 15th November 2017 facing three counts of armed robbery and one count of escaping from lawful custody.  Applicant denied the allegations.  After a lengthy trial he was convicted on all the charges and sentenced to 22 years imprisonment.  8 years were suspended for 5 years on the usual conditions of future good conduct.  On the first count, the complainant Sylvester Chitandawata testified that on the 29th July 2017 he was lured by three men from Pelandaba Township to the City Centre in Bulawayo.  Complainant was employed as a taxi driver at Mini Taxis.  Whilst in the taxi applicant sat directly behind the driver’s seat.  Before arriving at their destination the applicant and his associates stripped complainant of his clothes, strangled him, took cash and a mobile phone from him.  Complainant was dumped on the road side. Applicant and his associates drove away in complainant’s Toyota Raum motor vehicle.  Complainant was left stark naked.  The applicant was positively identified by the complainant who knew him as a tenant at a property he was residing at in Makokoba, Bulawayo.  The evidence of the complainant was credible and reliable in material respects.  He was not mistaken about the applicant’s identity and the conviction on this count is unassailable.</p> <p>            In the second count the complainant Ndumiso Ndlovu narrated how he picked three men who hired his white Honda Fit motor vehicle to take them from Cowdray Park to Entumbane.  Whilst in Nketa suburb the complainant was man handled.  He was robbed of cash, and a mobile phone.  He was moved from the driver’s seat to the rear seat.  A knife was produced by the one sitting in front.  Complainant was advised that the assailants had a firearm.  Ndumiso was later dumped, tied up using seat belts.  He later untied himself and made a report at the Police station.  During cross examination Ndumiso was positive that the applicant was involved in the robbery.  He had spoken to applicant.  The headlights were functioning and the complainant had a good look at the applicant at the time of the robbery.  His evidence was not seriously challenged.  Once again the conviction on the second count was proper.</p> <p>            On the third count the complainant Robert Chinemurumbi was employed as Manager at Moriah Guest Lodge along George Silundika street  in Bulawayo.  On 2nd August 2017 around 1900 hours the complainant was at work manning the reception area.  The applicant in the company of his co-accused arrived at his workplace.  They knocked at the gate.  Complainant attended to them briefly and they left.  Applicant and his colleagues went to sit at a street corner next to complainant’s workplace.  They had pretended that they wanted to secure a booking for the night.  At around 2200 hours the applicant and his colleagues returned to the lodge.  One remained in the motor vehicle.  Because of the lighting in the lodge complainant managed to identify the applicant.  Whilst in the lodge applicant’s accomplice produced a firearm, silver in colour.  Complainant was ordered to lie down.  They demanded cash.  His mobile phone was taken away.  He was locked up in a toilet.  The mobile phone was later recovered and led to the arrest of the applicant and his co-accused.  Complainant was robbed of US $50. The trial magistrate was satisfied with the evidence led and there is no reason to interfere with his findings on factual matters.</p> <p>            On the fourth count the applicant and his accomplice Farai Nhiwatiwa had gone for indications in Harare and Marondera.  On 28th August 2017 and at Ntabazinduna Plaza tollgate, along the Bulawayo-Harare highway, the applicant and his associates escaped from lawful custody after successfully removing the leg irons and handcuffs.  Applicant conceded that he had escaped from lawful custody but indicated that the incident was engineered by the police.  Applicant contended that the Police had been given a motor vehicle by Farai to act as an inducement for the Police details to facilitate his escape.  There was incontrovertible evidence that applicant had committed the offence of unlawful escape from custody.  The essential elements of the offence were met.  It is no defence to the charge of unlawful escape from custody to assert that the escape itself was orchestrated by some other third party.</p> <p>            As regards sentence the trial court properly exercised its sentencing discretion.  There is no misdirection.</p> <p><strong>The applicable law</strong></p> <p>The factors that have to be considered in an application for condonation for the late noting of an appeal were clearly laid down in the case of <em>Kombayi v Berkhout</em> 1998 (1) ZLR 53 (S) as the length of the delay, the explanation for the delay and the applicant’s prospects of success in the contemplated appeal. This matter was concluded on the 17th of November 2017. The application is dated 13th November 2019. There has been a considerable delay of nearly two years. No reasonable explanation for such delay has been advanced. The convictions on all counts are safe. The evidence placed before the court <em>a quo</em> was credible and reliable. The applicant has not met the requirements for the granting of the application.</p> <p>            In the result, I conclude that the application for condonation for the late noting of an appeal is an abuse of court process.  The application has no merit.</p> <p> </p> <p>            Accordingly, the application is hereby dismissed. </p> <p> </p> <p> </p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/126/2021-zwbhc-126.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20049">2021-zwbhc-126.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/lengthy-delay-between-conviction-and-hearing-appeal">lengthy delay between conviction and hearing of appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/robbery">Robbery</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 12 Jul 2021 07:54:25 +0000 Sandra 10073 at https://old.zimlii.org Tangwena And Anor v The Prosecutor General (SC 75/21, Civil Appeal No. SC 322/18) [2021] ZWSC 75 (14 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/75 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 75/21</p> <p>Civil Appeal No. SC 322/18</p> <p> </p> <p><strong>DISTRIBUTABLE</strong><strong>    (72)</strong></p> <p> </p> <p><strong>(1)     ISRAEL     TANGWENA      (2)     TONDERAI     MUOCHA</strong></p> <p><strong>v </strong></p> <p><strong>THE     PROSECUTOR     GENERAL</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, PATEL JA &amp; BHUNU JA</strong></p> <p><strong>HARARE: 6 JUNE 2019 &amp; 14 JUNE  2021</strong></p> <p> </p> <p><em>C Warara, </em>for the Appellant</p> <p><em>E Mauto, </em>for the Respondent.</p> <p> </p> <p> </p> <p> </p> <p><strong>BHUNU JA</strong>: This appeal from the High Court has its genesis in the Magistrates Court which acquitted both appellants on one charge of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] and, secondly, operating an unregistered trust in contravention of s 9 of the Private Voluntary Organisations Act [<em>Chapter 17:05</em>]. Aggrieved by the acquittal of both appellants on the first count the respondent appealed to the High Court (the court <em>a quo</em>).</p> <p> </p> <p>The court <em>a quo</em> after full contest found that the trial court erred and misdirected itself in that it misconstrued the facts in acquitting both accused. On the basis of such finding it adjudged that the trial court ought to have found both accused guilty as charged. It thus upset the judgment acquitting the appellants and issued the following order:</p> <p>            “Accordingly the court orders as follows:</p> <p> </p> <ol> <li>The appeal against the acquittal of first and second respondents (Now appellants) in CRB R 856 succeeds.</li> <li>The matter is remitted back to the trial court for sentencing.”</li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>PRELIMINARY OBJECTION</strong></p> <p>At the commencement of the hearing, counsel for the respondent raised a preliminary objection arguing that the first appellant, Israel Tangwena, should be barred from being heard on account that he is a fugitive from justice on a warrant of arrest.</p> <p> </p> <p>Counsel for the appellants countered that they were taken by surprise as they were not served with any warrant of arrest. The issue was being raised for the first time at the appeal hearing. It would be unfair and unjust for the respondent to ambush them with an issue never raised before in the pleadings and heads of argument. In any case, the same arguments for the second appellant would apply to both appellants on the merits. There would therefore be no prejudice if the first respondent was heard by the court.</p> <p> </p> <p>Having considered the appellant’s response, counsel for the respondent promptly withdrew his preliminary objection with the court’s approval.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The facts giving rise to both charges are hotly contested in the main. What is however not in dispute is that the complainant, Douglas Mamvura, was the owner of a company called Hedgehold Trading (Pvt) Ltd trading as Manna Brands.</p> <p> </p> <p>On the other hand, the appellants were the owners of an agri-business styled Makonde Industries. The business was in financial distress and consequently under liquidation. Desirous to revive their agri-business, the appellants approached the complaint with a proposal for Hedgehold to buy the troubled agri-business and assume its liabilities. It was a term of the agreement that the complainant would allot the appellants shares in the company.</p> <p> </p> <p>It was further proposed and agreed that, because the complainant had a clean financial record with the banks, he would be responsible for obtaining loans from his bank and other financiers to fund the new joint venture agri-business under the style of Hedgehold (Private) Limited.</p> <p> </p> <p>The complainant bought into the idea and it was agreed that, as the sole financier of the new joint venture rebranded Hedgehold (Pvt) Ltd, he would be one of the Directors, Executive Chairman and majority shareholder of the company. The other minority shareholders would be the two appellants and the late Chimbindi Fanuel. Open Tribe Foundation Trust was to be the fifth shareholder.</p> <p> </p> <p>The initial CR2 allotted the company’s shares as follows:</p> <ol> <li>Douglas Mamvura (Complainant)                   75%</li> <li>Tangwena Israel (1st Appellant)                      11%</li> <li>Muocha Tonderai (2nd Appellant)                   5%</li> <li>Chimbindi Fanuel (late)                                  5%</li> <li>Open Tribe Foundation Trust                         4%</li> </ol> <p> </p> <p> </p> <p> </p> <p>It is common cause that the fifth shareholder, Open Foundation Trust, was unregistered. Its object was nevertheless to cater for the welfare of underprivileged orphans, widows, HIV and AIDS victims. This forms the basis of the second allegation against the appellants, which is however not relevant to this appeal.</p> <p> </p> <p>In pursuit of the agreement, the complainant mortgaged his home and various other properties, including his wife’s car, to raise a total of US$350 000 which he ploughed into the agri-business. The business venture kick started with the complainant closely guarding his investment for fear of losing his mortgaged properties and investment.</p> <p> </p> <p>The learned judge in the court <em>a quo </em>found that the strict administrative measures adopted by the complainant must have unsettled the other Directors, thereby generating conflict and irreconcilable differences. The conflict culminated in the minority Directors locking out the complainant. They eventually filed a new CR2 with the Registrar of Companies in a bid to strip the complainant of all his rights and interest in Hedgehold. Despite their concerted endeavour to terminate their business relationship with him, they continued to hold onto his investment to his exclusion and detriment.</p> <p> </p> <p>In a bid to achieve their fraudulent scheme, the appellants are alleged to have crafted and filed fraudulent CR2, CR11 and CR14 documents with the Registrar of Companies to divest the complainant of his Directorship and shareholding in Hedgehold.</p> <p> </p> <p>The appellants denied the allegations of fraud both in the Magistrates Court and in the court <em>a quo</em> on appeal.</p> <p> </p> <p><strong>THE ISSUES FOR DETERMINATION</strong></p> <p>The appellants attacked the court <em>a quo’s</em> judgment on both procedural and substantive grounds. The grounds of appeal however raise one crisp issue for determination. The single issue for determination is:</p> <p> </p> <p>Whether or not the court <em>a quo</em> correctly found the appellants guilty of fraud as charged.</p> <p> </p> <p> </p> <p> </p> <p><strong>WHETHER OR NOT THE COURT <em>A QUO</em> CORRECTLY FOUND THE APPELLANTS GUILTY OF FRAUD AS CHARGED. </strong></p> <p>The appellants challenged their conviction on the basis that the respondent failed to discharge the onus of proving the essential elements of fraud beyond reasonable doubt. Section 136 of the Criminal Law (Codification and Reform Act) [<em>Chapter 9:23</em>] provides for the definition and essential elements of fraud as follows:</p> <p><strong>“136 Fraud</strong></p> <p> </p> <p>Any person who makes a misrepresentation</p> <p> </p> <p>(<em>a</em>)      intending to deceive another person or realising that there is a real risk or      possibility of deceiving another person; and</p> <p> </p> <p>(<em>b</em>) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;</p> <p> </p> <p>shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person, and be liable to:</p> <p> </p> <p>(i) a fine not exceeding level fourteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or</p> <p> </p> <p>(ii) imprisonment for a period not exceeding thirty-five years; or both”.</p> <p> </p> <p> </p> <p> </p> <p>The Act defines the offence of fraud in simple though somewhat frosty and verbose language, such that it needs further elucidation to give effect to the intention of the lawmaker.</p> <p> </p> <p>In plain layman’s language, fraud may however be defined as dishonestly making a false misrepresentation with the intention to cause actual or potential prejudice to another person. The intention of the legislature in s 136 of the Act was to proscribe and punish theft by deceitful means.</p> <p> </p> <p>In the context of the statutory definition of fraud, its essential elements may be paraphrased as follows:</p> <p> </p> <p>1.     Making a misrepresentation to another person.</p> <p> </p> <p>2.   With the intention to cause another person to act on the misrepresentation to the actual or potential prejudice of any person.</p> <p> </p> <p>                       </p> <p> </p> <p>Section 136 of the Act is couched in broad terms encompassing a situation where the misrepresentation is made to a person other than the subject of the intended prejudice. To constitute fraud, it is sufficient that a misrepresentation is made to any person with the intention of causing any other person actual or potential prejudice.</p> <p> </p> <p>In <em>casu</em>, it does not therefore matter that the misrepresentation was made to the Registrar of companies with the intention of causing prejudice to the complainant.</p> <p> </p> <p> </p> <p>It is plain from the evidence led in the trial court that the appellants completed and submitted the alleged fake fraudulent CR2 document dated 23 January 2013. The alleged fake CR2 form now reflects that all the shares in Hedgehold were allotted to Open Tribe Foundation Trust on 25 January 2013. The State alleged that the fake CR2 was backed up by an equally fraudulent special resolution of Hedgehold crafted in the following terms:</p> <p>“IT WAS RESOLVED THAT:</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> 1. Cancellation of CR2</p> <p> </p> <p>That the unauthorised CR2 which sought to change the ownership of the company in contravention of paragraph 4 and 5 (b) of the company’s Articles of Association be amended and replaced.</p> <p> </p> <p>2.  Allotment of shares.</p> <p> </p> <p>That the unissued shares in the company being 1870 (one thousand eight hundred and seventy) shares of 1 (one) dollar each be allotted in full to Open Foundation Trust Trading and that a form CR2, share allotment form, giving effect to the allotment be lodged with the Registrar within the prescribed time.”</p> <p> </p> <p> </p> <p> </p> <p>The effect of the amended CR2 form was to deceitfully strip and divest the complainant of his entire shareholding and huge investment in Hedgehold Pvt Ltd to the tune of US$350 000 without his consent. We therefore find no merit in the appellants’ complaint that the court <em>a quo</em> misdirected itself in substituting its own discretion for that of the trial court. This is because the trial court’s acquittal of the accused in the face of overwhelming evidence was irrational and grossly unreasonable.</p> <p> </p> <p>In <em>Chiodza v Siziba</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>, relied upon by the appellants, this Court held that:</p> <p>“The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there had been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court.”</p> <p> </p> <p> </p> <p>In this case, the basis of the court <em>a quo</em>’s interference was the failure by the magistrate to appreciate the full extent of the State’s case and the evidence on record leading to a failure of justice. The court <em>a quo</em> found that there was clear cogent expert evidence establishing beyond reasonable doubt that the documents admittedly crafted and presented to the Registrar of companies by the appellants to the prejudice of the complainant were fraudulent.</p> <p> </p> <p>A perusal of the record of proceedings shows that the learned judge <em>a quo’s</em> remarks, at p 10 of the cyclostyled judgment, to the effect that the trial magistrate strangely went out of his way to justify the fraudulent acts of the appellants, are beyond reproach.</p> <p> </p> <p>That being the case, the court <em>a quo</em> cannot be faulted for finding that the trial court misdirected itself in acquitting the appellants in the face of overwhelming evidence establishing the accused’s guilt.</p> <p> </p> <ol> <li><strong>.</strong></li> </ol> <p>That the State proved the accused’s guilt beyond reasonable doubt is beyond question. For that reason, the appeal can only fail.</p> <p> </p> <p>It is accordingly ordered that the appeal be dismissed.</p> <p><strong>GWAUNZA DCJ</strong>                             I agree</p> <p><strong>PATEL JA</strong>                                        I agree</p> <p><em>Warara and Associates, </em>appellants’ legal practitioners</p> <p><em>National prosecuting Authority, </em>respondent’s legal practitioners.</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> SC 4/15 at p6</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/75/2021-zwsc-75.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33419">2021-zwsc-75.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/75/2021-zwsc-75.pdf" type="application/pdf; length=514488">2021-zwsc-75.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/4">Chioza v Siziba (Civil Appeal No SC 16/11) [2015] ZWSC 4 (22 February 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1967/63"> Private Voluntary Organizations Act [Chapter 17:05]</a></div></div></div> Mon, 21 Jun 2021 07:27:18 +0000 Sandra 10067 at https://old.zimlii.org S v Moyo (HB 2-21, HCA 135/18) [2021] ZWBHC 2 (18 March 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/2 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/2/2021-zwbhc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30389">2021-zwbhc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/2/2021-zwbhc-2.pdf" type="application/pdf; length=451218">2021-zwbhc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape">Rape</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/trial">Trial</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conduct-magistrate-criminal-trial">conduct of magistrate in criminal trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duties-magistrate-criminal-trial">duties of magistrate in criminal trial</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/admissibility-evidence">Admissibility of evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/credibility-evidence">Credibility (EVIDENCE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sexual-cases-evidence">Sexual cases (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Fri, 18 Jun 2021 08:07:24 +0000 Sandra 10065 at https://old.zimlii.org S v Moyo (HB 1-21, HCA 168/19 XREF PT 563/19) [2021] ZWBHC 1 (11 March 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 01/21</p> <p>HCA 168/19</p> <p>XREF PT 563/19</p> <p> </p> <p><strong>THANDANANI MOYO</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE </strong></p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAKONESE AND MOYO JJ</p> <p>BULAWAYO 23 NOVEMBER 2020 AND 11 MARCH 2021</p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p><em>Ms A Masawi,</em> for the appellant</p> <p><em>T Muduma,</em> for the respondent</p> <p> </p> <p><strong>MOYO J</strong>:       The appellant was convicted of indecent assault as defined in section 67 (1) of the Criminal Law Codification and Reform Act Chapter 9.23.</p> <p>The facts of the matter are that the appellant indecently assaulted the complainant then a 14 year girl by fondling her breasts and touching her thighs.  The complainant was a Form 1 pupil at the material time and the appellant was her English teacher.  The appellant was sentenced to 36 months imprisonment of which 12 months imprisonment was suspended for 5 years on the usual conditions and the remaining 24 months was suspended on condition the appellant completed 840 hours of community service at Ntenjaneni Police Post.  Dissatisfied with both conviction and sentence the appellant approached this court.</p> <p><strong>The State Case</strong></p> <p>            Ntombizondile Sibanda told the court that she regarded herself as complainant’s mother and that complainant told her when she went to a school visit on 16 June 2017 that a teacher was proposing to her.  Complainant did not tell her about breast fondling and the removal of tights.  The parents then phoned the school head.  She said she heard about the fondling of the breasts and the removal of the tights when the statement was being recorded.  She said complainant seemed shocked and scared when she told her of the proposal and she believed the complainant because she was sincere about it.  She said she did not question complainant about her failure to tell her about the fondling of breasts and the removal of the tights because she thought maybe it happened after she had left the school since she saw the complainant only on visits.</p> <p>            Chantell Masuku told the court that appellant was her English teacher and that he sexually abused her.  She gave a series of encounters with the teacher that made her uncomfortable and that sometimes he told her he loved her but the material aspects of her testimony are where she states that on a Tuesday night during studies appellant called her.  They left the class and went to Beit Hall.  He closed the door with one hand and held her by the left hand and fondled her breast using the right hand.  He then tried to pull her skin tight and the siren rang.  He then said he would see her the following day.  She said she did not consent to the fondling and she tried to push him away whilst crying.  She said she never thought of screaming but she was crying.  The siren then rang and she found that other girls had left the classroom and she went to the dormitory.  She was crying.  She later told Leeanne and Mitchell Pfumo.  They then went to sister Makumbe in the evening.  After 2 weeks her parent came for the visit and she told her mother.  The appellant later apologized and asked the complainant if she had told anyone and she said no.  Complainant denied that she had a crush on the appellant and that most students just liked appellant because he was interesting and she said it is not true that she was bitter because he did not date her, since she did not go to school to date and accused had a wife at the school.  Responding to this question the court noted that complainant’s eyes were tearing up.</p> <p>            She was quizzed under cross-examination on the information she gave to the District Education Officer and she said she may have missed some of the things because she was being called a lot and called over the same thing and that she was traumatized.  Complainant under cross-examination explained that she could not be precise on dates.  She said she did not want to fall in love with the teacher she was at school to learn and she did not want him to destroy her future and she also did report the case for future students who might not have the courage to do so.  She refuted that she ever told Form 3s that she had a crush on the appellant and that if any students come to court to state that they would have been bribed.  She said it is a lie that she had a crush on him and was fabricating the charges because he did not reciprocate.  She denied ever telling other girls that she liked the appellant’s suit.  She even asked why she would lie about a teacher and when she was told that it was because he did not love her back she said she did not see him that way and he was her teacher and she would not wish to date a teacher.  She further denied that she was an attention seeker and that if she really had a crush on the appellant as alleged, he should have cautioned her as a teacher or even told the female teachers to talk to her.    She confirmed to the court that she first told either Mitchell or Leeanne.  She said she was traumatized after making the report as other students said bad things about her and her family and that they even wrote on the walls.  She also told the court she wrote a suicide note because she wanted to commit suicide because of the way people treated her after she made the report.  Those were the material respects of complainant’s testimony.  She was not shaken under cross-examination, in fact she answered many questions relating to her relationship with the teacher so well.</p> <p>            She stated that she could not refuse when he called her because he was a teacher and she was a student.  She stated that it is not true that she had a crush on the teacher, that she had gone to school to learn and would not destroy her future by being in love with a teacher and that the teacher in fact had a wife.  She also refuted that she misbehaved towards the teacher and that she was not happy because of his failure to reciprocate her overtures, she stated that that was not true and that if the teacher felt she misbehaved he could have reigned her in or asked the female teachers to talk to her.  She refuted that she ever told other girls that she liked the teacher and had a crush on him and that if any student came to testify in favour of that they would have been bribed.  She also explained the differences in statements to the Education Officers and the Police saying she had been asked many times about the same issue and that she was traumatized.  In my view the complainant was credible, stood her ground, explained any shortcomings in her testimony well and no holes where poked on her version during cross-examination which was lengthy and touched on many peripheral issues like several encounters between complainant and the appellant which had nothing to do with the incident being complained about.</p> <p>            The incident at the centre of the complaint is the one that complainant alleges occurred at the Beit Hall where the teacher allegedly fondled her breasts and tried to remove her tights.</p> <p>            Buhle Moyo was the next to testify.  She told the court that she is a teacher at complainant’s school and that as she marked Agriculture books she came across a note in Chantell’s book saying she wanted to kill herself because of problems that she had at the school.  The complainant then told this witness and another teacher that the appellant was proposing to her and that at some point he even called her to his office during evening studies and he held her waist tried to undress her by lifting her tunic and also tried to remove her tights then the siren rang. (emphasis mine)  She said she observed complainant’s demeanor as she reported the alleged assault initially she was quiet but towards the end she started crying. (my emphasis)  Nothing much arose during cross-examination as this witness was being asked numerous issues that did not pertain to the report that complainant had made to her about the incident when appellant had tried to remove her tights or tunic and the siren rang.</p> <p>            Catherine Makumbe was the next to testify.  She said that she is a Convent sister and a teacher at Empandeni Mission.  She said sometime in June the complainant came to the convent accompanied by a prefect called Mitchell.  She said the complainant told her that the appellant had called her out during studies and proposed to her.  He held her by the back and her chest.  Then he asked to kiss her.  She said he had also grabbed her tunic and pulled it up.  She said complainant appeared nervous as she narrated her ordeal but her voice was very confident.  She also told the court that the complainant did not give her exact dates and she did not press her about them as complainant was disturbed.   The cross-examination of this witness again centered on peripheral issues, not on the crux of the matter, which is the gist of the report of a sexual assault by the complainant.  This witness was asked about her own reaction to news, what advice she gave to the appellant and whether she once told appellant that complainant had a bad family background as well as whether other teachers threatened to handle the matter if she did not and also about whether she had heard a number of rumours around the school.</p> <p>            Mitchell Pfumo was the next to testify.  She said that she was an upper 6th student at complainant’s school and that complainant came to her and told her that appellant was always proposing and at some point he held her hands from the back.  She then took complainant to sister Makumbe.  She said complainant seemed to be scared and she was shaking.  When asked under cross-examination if she went to report that complainant was held by accused and he had proposed to her, she said she accompanied complainant to go and make a report.  She said she read the note where complainant had written but she only read part of it.  She said she did not have time to read it all up.</p> <p>            After the testimony of Mitchell Pfumo the state closed its case.</p> <p><strong>The Defence Case</strong></p> <p>            The appellant told the court that he is a teacher and Acting Deputy Head Master at complainant’s school and that he used to teach complainant as well.  He confirmed that complainant did borrow an unnumbered book and he called her for it to be numbered.  He also confirmed that he asked the complainant for a book that complainant said she could not find.  He said that on that day it was the 2nd of June.  He said complainant then followed him and asked about the book’s price as the appellant had been angry and told her that it needed to be replaced.  He said he would give complainant the price the following day since the price would be in United States dollars.  He said at that time the siren rang and a girl called Vacacy came, that is when complainant left.  He denied any personal interactions with the complainant.  He denied staring at the complainant and said that in class he looked at everyone.  He told the court that complainant had a crush on him because she kept on coming to his office and that she once complained that he gave so much attention to the Form 4s.  He said that he ignored her after noticing that she had feelings for him.  He denied sending Chantell and other girls to collect chairs and that he sent any messages to students via the prefects.  He denied telling the complainant that he loved her on that particular day.  He   denied the allegations of lifting complainant’s tunic and touching and asking for a kiss when he heard them from sister Makumbe and he dismissed them as a fabrication.  He said after the allegations complainant and other girls came crying saying he must not stop teaching them.  He said complainant told many people about appellant proposing love to her.  He said that later there was a demonstration at the school in solidarity with complainant.  He also stated that he suspected that a third force was behind the sexual complaint.  He said 2 teachers did not like his strict management style and the fact that he told on them after they were caught drinking beer in the evening hours.  He said he was later called whilst on bail about an issue that complainant had missed her period and he asked the ladies to make her write a report.  The report allegedly stated that she felt something entered her body when appellant touched her and complainant was not sure if it was a finger or what.  Asked why the complainant being a child would go to such lengths in fabricating against him the appellant said she liked him a lot and told the other girls about it and that she was attention seeking towards the appellant and that so she wanted to save face and say bad things about the appellant and that she got angry when she realised he was taking the other classes.  That she was showing her disgruntlement through the report.</p> <p>            Asked under cross-examination he confirmed that complainant fabricated the allegations because she had a crush on him he answered in the affirmative and asked further to explain why he concluded that she had a crush on him he said she would come to his office a lot and she was very possessive of him and was unhappy that he did not give her time.  He said a group of girls told her that complainant had a crush on him.  He confirmed that on a date he refers to as the 2nd of June complainant followed him to his office and he was alone and that that was contrary to standards as the students should have come being 2 but complainant just followed him.  He agreed that when complainant followed him, he was alone with complainant then Vacacy came.  At page 79 of the court record he was asked the following question</p> <p>            Q.        Vacacy came and found you with complainant</p> <p>A.        I called complainant at 8 so all the activities could happen at 8.  The siren rang and Vacacy came.  (my emphasis)</p> <p>Asked if he was allowed to entertain students at 8 pm he said after study time they can move around and about.  He confirmed under cross-examination that as a teacher he did not take any steps about the alleged crush that complainant had on him.  Those were the material respects of appellant’s testimony.</p> <p>Next to testify was the Headmaster Mandla Ndlovu who confirmed receiving the report from 3 teachers.  He called the accused and questioned him and he denied the allegations.  He confirmed that students consult teachers at night but that he tells teachers to be wary of being with the students alone at night.  He confirmed that it is a school rule that they can consult teachers even at night because some lessons are done at night.  Those were the material respects of Mandla Ndlovu’s testimony.</p> <p>Given Moyo was the next to testify.  He said he is a guard at the school.  He told the court about his duties and how they control student movement after 8 pm and that they lock gates and do not allow the students in.  He said early June to about 15th of June he was not at the school.  He said he does not know anything about the incident being mentioned and he knew nothing about the matter before court.  He was told under re-examination that he had been called as a guard and that they wanted to know if in the generality of his duties was it possible for a Form 1 student to be at a teacher’s office at 9 pm.  He then said it has not happened because by 9 they would have knocked off.</p> <p>In assessing this case, I will start with the notice of appeal.  The notice of appeal itself does not have brief and concise grounds of appeal.  It reads like heads of argument and is in fact argumentative rather than simply giving the concise grounds on where the court <em>a quo</em> erred.</p> <p>Ground number 1 talks of fairness and due process lacking in the entire trial.  On this aspect counsel attacks the manner in which proceedings are held in court in Zimbabwe and laments the lack of recording of court proceedings by either machines or independent personnel.  However, it is clear from the appeal record cover that counsel did certify the record of proceedings as correct on 26 November 2019.  One clearly then fails to appreciate the import of the preliminary point raised in the heads of argument in support of the first ground of appeal.  Counsel, further in her heads, seems to have issues with the recording related to the objections that were made by the state and sustained by the court.  However, counsel should have objected to the record of proceedings, decline to sign it and present her own version of notes to challenge the court’s recording.  She should have simply declined to certify the proceedings as a true reflection of the proceedings conducted in the court <em>a quo</em>.  It presents a contradiction that on one hand she certifies the record as correct then on the other, she challenges the contents of the record on appeal.  The very purpose of certifying the record of proceedings by all interested parties is so that a record of proceedings that is correct is referred to the appellate court.  Appellant’s counsel also submits that they failed to cross-examine the complainant on the statements she allegedly wrote at the school, 4 of them.  This aspect is captured at page 31 of the court record.  The complainant said she made one statement to the Police and that at school she wrote a report.  It was put her that she made 4 statements and that they would be read to her.  Complainant agreed that they be read.  Defence counsel then asked her if she made some audios and she answered by saying she made 2 audios.  At that juncture, the prosecutor said “I object” Then the court stated “Question not to be answered”  Defence counsel then proceeded to question the complainant.  It is not clear what the objection was to and what question the court was saying should not be answered.  The objection and the sustenance seem to be about a question that complainant had been asked and the last question she had been asked she had already answered.  If the transcribed record did not capture that event correctly counsel for the defence should have objected to signing it so that a clearer picture of what the objection was about and its sustenance would be clear to the appellate court.  Counsel nonetheless proceeded to cross-examine complainant about what the defence perceived were different statements and reports that she had made and she explained that in writing these reports she may have missed some things because she was being called a lot over the same things and that she was also traumatized.</p> <p>It is this court’s view that the issue of the different statements was canvassed with complainant explaining why that was so.  However, at the end of the lengthy cross-examination complainant maintained that the incident did occur wherein the teacher, handled her, touched her breasts and tried to remove her tights.  In my view, that is the crux of the matter.  The complainant stated that it was on a Tuesday night during studies he came and called her.  They left the classroom and went to Beit Hall.  That is when the indecent assault is alleged to have occurred.  She told Mitchell Pfumo about the incident and they then went to sister Makumbe to report in the company of Mitchell.  The 2 witnesses also testified and confirmed receiving the sexual complaint.  I have already alluded to their testimonies herein.</p> <p>It is trite that issues of credibility obviously lie in the dormain of the trial court and I have to mention that of all the witnesses that gave evidence for the state no one seemed to be bent on telling the court a fabrication and none had their evidence was poked during cross-examination.  The complainant gave a vivid account of what transpired and answered the challenges thrown at her during cross-examination very well.  For instance, she agreed that she left out certain information in some of the statements she had made at school but she gave a valid explanation of having been subjected to questions many times about the same incident and that she was traumatized.  She was traumatized by the incident as she even thought of committing suicide per the note found by the other teacher in her exercise book.  Certainly, this is a valid explanation.  Again, she explained that she never had any crush on the appellant and that appellant was generally liked by most students as well as that she had gone to school to learn and she would not date a teacher.  She further explained that if the teacher really felt that she had a crush on him and was therefore behaving inappropriately he could have reigned her in through the usage of female teachers.  In a nutshell, complainant explained away the issues related to the statements and she also successfully challenged the issue of the crush she is alleged to have had on the appellant.</p> <p>The trial court could not be faulted for accepting her version and it is clear that she did make a report at the earliest possible opportunity.  That she never gave her mother the fuller details, cannot be held against her so as to vitiate the complaint because she did tell sister Makumbe the fuller details.</p> <p>The accused person himself admits to having been alone at some point with the complainant and that he was under the impression that complainant loved him and had a crush on him.  He further states that the allegations were as a result of unreturned love wherein the complainant loved him and he did not reciprocate.  He said complainant had a crush on him because she would frequent his office and she also told other girls.  He further stated that he thought there was a third hand in the allegations presumably by teachers who did not like his strict management style.  He however, does not go deeper in this theory and conspiracy to show how then the allegations of the sexual assault come about as a result of the third force.  It is not clear whether his defence is that complainant was angry about the unreturned love and the 2 teachers then hijacked that and made her frame him.  It is either complainant had a crush on him and out of lack of reciprocation she fabricated the allegations or the other 2 teachers out of their hatred for his management style called complainant and asked her to join them in their mission to discredit him.  The defence is elusive in that clearly the 2 teachers who testified in court were not shown to be part of any project to discredit him and in fact sister Makumbe seemed not to have wanted the complainant’s allegations to go far.  The other teacher simply found a suicide note by the complainant in her exercise book.  The defence by the appellant in the court <em>a quo</em> has problems in the following respects:</p> <p>1)         Not only is it fanciful, it is elusive in that the so called crush was not based on any factual basis save that accused read into complainant’s frequent visits that she had a crush on him.  He says other students told him as well but they never testified to that effect.  The crush seems to have been in the accused’s own perception as complainant vehemently denied same.</p> <p>2)         The appellant being a Deputy Headmaster alleges that a student had a crush on him and that she frequented his office but surprisingly he did not do anything about it.  He says he just ignored it and he says this was left until a time that she got angry and decided to fabricate allegations of an indecent assault against him.  His position, and his inaction and his allowing the complainant to frequently visit him in the circumstances is not consistent with the conduct of a person in authority and in a <em>loco-parentis</em> position.  His conduct of leaving such an undesirable state of affairs smacks of a person who liked the set up.</p> <p>3)         That complainant may have liked the teacher, or frequented his office, if true, cannot serve as a defence because it then shows that the appellant did have an opportunity to abuse the child as alleged most probably after misreading her intentions.</p> <p>4)         The appellant also comes up with another theory which was seemingly plucked from the air as there is absolutely no fact stated to sustain it.  The theory that the 2 teachers who he caught on a beer drinking spree could be responsible for fabricating the allegations together with the complainant.  This is what appellant terms a third force.  We are not told how this theory came about and how the 2 teachers are linked to the report by the complainant.  It is just a bare statement with no flesh at all that appellant throws in as a defence.</p> <p>The learned Magistrate cannot be faulted for rejecting the defence case as other than appellant’s testimony, the other 2 defence witnesses did not assist the defence case in any way as their evidence had absolutely nothing to do with the allegations appellant was facing they could not vouch for either side of the case, they simply did not know anything about the allegations.  The guard gave a general outlook of what would happen after hours but he did not tell the court that as a matter of fact what complainant alleged happened did not happen.  He in fact also told the court that he was away early June until the 15th of June.</p> <p>The appellant attacks the manner in which the trial court reasoned the judgment, however, the crux of the matter is whether, with the evidence in the court record appellant’s guilt was proven beyond any reasonable doubt?  I have already shown herein that the complainant gave her evidence well and explained away any inconsistencies in her statements as well as standing her ground during cross-examination to deny any crush on the appellant and in fact to challenge the appellant’s conduct as a teacher who thought that a student was behaving inappropriately towards him.  Appellant himself came up with a fanciful defence and in fact admitted that complainant used to come to his office and even admitted that there is a time when he was alone with the complainant, a situation that he said was in fact not allowed.  He allegedly further sat back and did nothing as a teacher faced with a student misbehaving towards him and even if this version could be accepted for arguments sake, one would be inclined to believe that he just waited for an opportunity to pounce.</p> <p>The state in this case had to prove that complainant was physically touched or handled by the appellant in a manner she did not accede to and which was of an indecent nature.  Whether breasts were fondled or not, what comes out clearly is that accused did touch complainant and attempted to remove her tights.  That is consistent in all the accounts she gave.</p> <p>Indecent assault is defined in section 67 of the Criminal Law Codification and Reform Act Chapter 9:23 as:-</p> <p>“1)       A person who</p> <p>(a)        being a male person-</p> <p>(i)         commits upon a female person any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than sexual intercourse or anal sexual intercourse, or other act involving the penetration of any party of the female person’s body or of his own body.”</p> <p>In this matter the accused is alleged to have handled complainant and tried to remove her tights.  There is also in some instances a mention of fondling of breasts.  Although, the issue of breasts seems to be left out by some witnesses the allegations regarding the handling of thighs and attempt to remove her tights are consistent throughout the testimony of all the witnesses although there is also a mention of a tunic.  The touching of thighs and attempt to remove the tunic or tights, even without the fondling of breasts fit squarely on the definition of the charge in section 67 of the Code.  The defence counsel seemed to concentrate on the issue of the fondling of breasts but with or without the fondling of breasts the state would have managed to prove its case on the inappropriate touching of the thighs and an attempt to remove the tights.   There is also the aspect of complainant having missed her period.  She however explained that under cross-examination where at page 45 of the record of proceedings she was asked whether it was not correct that she said she missed her period because of him and she refuted that saying she was just confused and maybe it had been an issue with the diet.  Counsel for the defence did cross-examination on many issues and had ample time to do so but clearly from the court record she dwelt on rumours that were going around the school, what the witnesses thought or what other people had said or done about the incident she then lost focus on the crux of the matter, which was a simple question whether the offence of indecent assault could have been committed on the complainant and instead of just keeping to that point, defence counsel brought in numerous facts which did not assist the court in any way in resolving the matter at hand.  For instance a lot of questions were asked about what other people did or said which had absolutely nothing to do with what could have happened between complainant and the appellant on the alleged incident.  Defence counsel submits that the court did not use the evidence of the defence witnessed but such evidence tendered by the second defence witness Mandla Ndlovu (the Headmaster) and Given Moyo ( the guard) did not advance the accused’s defence in any manner.  Even defence counsel told the witness Given Moyo that they had called him as they wanted to know in the generality of his duties if it was possible for a Form 1 student to be at a teacher’s office at 9 pm. And he said it has not happened before because by 9 they would have knocked off.  Such an answer would not be used to refute the specific allegations made by the complainant against the appellant for the obvious reasons that the evidence had to zero in on the specifics of the day in question for it to be relevant to the allegations the appellant faced.</p> <p>The defence counsel also seemed to have issues with the information the complainant told her mother, however it is clear from the court record that she expressed her dissatisfaction with appellant’s conduct to her parents who then without asking for further details referred the matter to the school authorities.</p> <p>It is our considered view that the alleged inconsistencies do not go to the root of the complaint so as to vitiate it for the simple reason that any fears of fabrication were dispelled by the complainant herself during cross-examination.  The other 2 witnesses that were called that is sister Makumbe and Mitchell Pfumo corroborated her evidence.  Seemingly, Mitchell Pfumo upon receipt of the complaint did not seek for further details but decided to accompany the complainant to sister Makumbe where she would report the matter.  In fact at page 62-63 of the court record she tells the court that she read only part of the statement that the complainant wrote when she accompanied her to sister Makumbe and she said she did not have time to finish reading the statement.  She however confirmed reading the part about the appellant handling the complainant and trying to pull her tunic.</p> <p>It is trite that where there are contradictions in the state case, it depends on the explanations given for the contradiction and the sum total of the evidence before the court.  In this case there was consistency in the state case about appellant holding complainant and trying to remove her tights or tunic.  There is absolutely no contradiction on this respect and the court <em>a quo</em> would not have a reason to reject the evidence of the state witnesses in that aspect.  Proof beyond reasonable doubt does not entail perfection in the state case.  It entails proof that beyond a reasonable man’s questions and doubts, a set of facts have been proven to have occurred at the behest of an accused.  It means that the crux of the matter as per the charge the accused faces, has indeed been established beyond any reasonable doubt.  Juxtaposing the evidence of the state witness and the fanciful defence given by the appellant in the court <em>a quo</em>, and also considering whether the defence proffered is reasonable and possible in the circumstances, the court <em>a quo</em> cannot be faulted in finding that indeed the guilt of the appellant in this matter was proven beyond a reasonable doubt.</p> <p>Proof beyond a reasonable doubt is explained in Reid Rowland’s Judges handbook for Criminal cases at page 97 as follows:-</p> <p>“In our system, the state has to prove the guilt of an accused beyond reasonable doubt.  Proof beyond reasonable doubt cannot be subject to exact measurement.  For Judges and Magistrates it becomes a matter of experience and intuition rather than analysis.  It is a matter of degree.  Proof beyond a reasonable doubt does not mean proof to an absolute degree of certainty.  It means that there should be such proof as leaves no reasonable doubt in the mind of an ordinary man capable of sound judgment and of appreciating human motivations.  It means a high degree of probability not proof beyond a shadow of doubt.  The state does not have to close every avenue of escape, and fanciful or remote possibilities can be discounted as these do not lead to reasonable doubt.”  (my emphasis)</p> <p>The author therein then refers to the case of <em>Isolano v the State</em> 1985 (1) ZLR 62 (SC).  In the matter at hand, the fanciful theories that complainant was bitter about unreturned love and that a third force had a hand in the form of disgruntled teachers, are remote theories that indeed have to be discounted.  Whilst the accused person bears no onus to prove the truthfulness of his defence, he however still has to come up with a defence that is reasonably possibly true in the circumstances.  In other words accused must come up with a version sufficient to raise a defence and all that is required is that there be sufficient material evidence to make the defence a realistic issue.  It is not realistic that complainant fabricated allegations because of unreturned love, neither is it realistic that because there are some teachers that the appellant once told of their wrongdoing then they could be the third force in the case.  The defence proffered is a matter of surmise and conjecture, it cannot be held to be reasonably, possibly true in the circumstances.  This is juxtaposed with appellant’s own evidence that complainant did frequent his office.</p> <p>Reid Rowland further states at page 97 of the Judges handbook in criminal cases that:-</p> <p>‘To be a reasonable doubt, the doubt must not be based on pure speculation but must be based upon a reasonable and solid foundation created either from the positive evidence or gathered from reasonable inferences not in conflict or without weighed by proven facts.  (It is sometimes said that accused should not be convicted unless there is moral certainty as to his guilt).  However, it is not necessary for the state to prove every single individual fact in a criminal case beyond a reasonable doubt although the state must prove beyond a reasonable doubt a fact which is particularly vital upon which the whole state case hinges.  The question which needs to be asked is: do all facts taken together prove guilt beyond a reasonable doubt?”     </p> <p>On the other hand Reid Rowland further states that accused must be acquitted if there is a reasonable possibility that his story is substantially true and that his explanation might be reasonably true.  We have already found that appellant’s defence is fanciful and more of a theory than the established facts.  The appellant’s counsel in the heads of argument and the grounds of appeal attacks the learned Magistrate’s reasoning and it is clear from the learned Magistrate’s reasoning that she just chose to believe complainant’s story without assessing if the accused’s defence is reasonably, possibly true, which in itself is a misdirection however, at the end of it all, the appellate court should consider the sum total of the evidence before the court <em>a quo</em> and satisfy itself either that the accused’s guilt was proven or was not proven looking at the evidence in the court record.  It does not necessarily follow that every misdirection vitiates a conviction.  Regard should be had to section 38 (2) of the High Court Act which provides thus:</p> <p>“Notwithstanding that the High Court is of the opinion that any point might be decided in favor of the appellant, no conviction or sentence shall be set aside or altered unless the High Court considers that a substantial miscarriage of justice actually occurred.” (emphasis mine)</p> <p>The Act further provides in section 38 (3) that:-</p> <p>“If any point raised is decided in favour of the appellant and it consists of a misdirection by the trial court or tribunal of itself on a question of law or a question of fact or a question of mixed law and fact, the High Court shall dismiss the appeal if it is satisfied that the evidence which has to be considered has not been substantially affected by the misdirection and that the conviction is justified having regard to the evidence.” (my emphasis)</p> <p>It therefore follows that even if the learned Magistrate’s reasoning fell short of the required standard <em>vis a vis</em> eliminating accused’s defence, this court will not, where evidence led proves the state’s case beyond a reasonable, doubt simply allow the appeal on that sole basis.  The appellate court can still in terms of the aforestated sections of the High Court Act, make its own findings on the reasonableness, possibility or otherwise of the defence proffered as shown herein</p> <p>On the other hand, the totality of the facts, that is considering the following issues:-</p> <p>1)         Complainant’s vivid explanation of what transpired.</p> <p>2)         Complainant’s explanation on pertinent issues during cross-examination which I have already alluded herein.</p> <p>3)         The consistency of the report relating to the touching of thighs and the attempt to remove tights or the tunic.</p> <p>4)         The appellant’s perception that complainant loved him and therefore wanted a sexual relationship with him when there is no specific conduct or mention of complaining communicating as such to the appellant.  This is coupled with the fact that he failed to tell the court where this theory emanated from as clearly complainant never told him as such and he says he read from her conduct of being always at his office which in itself is mere conjecture.  He also says some other students told him.</p> <p>5)         His conduct of not acting like a teacher who is in <em>loco parentis</em> and reporting or dealing with complainant’s alleged inappropriate conduct.</p> <p>6)         The fact that clearly form the totality of the evidence, complainant would sometimes be alone with accused a situation that was not permitted in the school.</p> <p>7)         Appellant using mainly unproven rumours to rely on in his defence.  Rumours are just that, they are not facts neither can they be material to a determination that has to be made in a court of law.</p> <p>8)         The theory of the third force is inconsistent with complaint’s anger over unreturned love, we are not even told if the 2 teachers appellant alleges had issues with his strict management, even got involved with the complainant’s cause at any stage.  This clearly is a desperate attempt by the appellant to throw in everything with the hope that something somehow might hold.  It is thus our finding that the conviction of the appellant by the court <em>a quo</em> as charged is satisfactory as the state did prove its case beyond a reasonable doubt in the circumstances.</p> <p><strong>Ad Sentence</strong></p> <p>            On the sentence, sentencing is the province and dormain of the trial court and this court will only interfere if there is a misdirection.  The penalty provision provides for a fine not exceeding level 7 or imprisonment not exceeding 2 years or to both such fine and imprisonment.  The learned Magistrate erred and misdirected herself when she sentenced the appellant to 36 months imprisonment of which 12 months imprisonment was suspended on the usual conditions with the remaining 24 months suspended on condition accused performed 840 hours of community service at Ntenjaneni Police Station.</p> <p>            The sentence will accordingly be altered so as to remain within the permitted penalty provision.  Accordingly it is ordered as follows:-</p> <p>            1)         The conviction is confirmed.</p> <p>            2)         The sentence by the court <em>a quo</em> set aside and substituted with the following:-</p> <p>The accused is sentenced to 24 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition the accused does not during that period, commit any offence involving indecency whereupon conviction he shall be sentenced to imprisonment without the option of a fine.  The remaining 18 months imprisonment is suspended on condition accused completes 630 hours of community service at Ntenjaneni Police Post on the following conditions;</p> <p>            a)         Community service starts on 15th March 2021</p> <p>b)         It shall be performed on weekdays between 8 am – 4 pm on conditions set out by a probation officer.</p> <p> </p> <p>Makonese J………………………I agree</p> <p><em>Abigail Masawi Law Chambers</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p>             </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/1/2021-zwbhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34179">2021-zwbhc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/1/2021-zwbhc-1.pdf" type="application/pdf; length=362832">2021-zwbhc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-sentence">Appeal of sentence</a></li></ul></span> Fri, 18 Jun 2021 07:26:52 +0000 Sandra 10064 at https://old.zimlii.org S And Another v Marara (HB 96-21, HCA (COND) 12/21) [2021] ZWBHC 96 (03 June 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/96 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 96-21</p> <p>HCA (COND) 12/21</p> <p><strong>MERRYWARD MARARA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>NATIONAL PROSECUTING AUTHORITY</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 3 JUNE 2021</p> <p> </p> <p> </p> <p><strong>Application for late noting of appeal</strong></p> <p>                                                                                                          </p> <p> <em>Applicant in person</em></p> <p><em>B. Maphosa</em> for the respondent</p> <p> </p> <p>            <strong>MAKONESE J:</strong>        The applicant appeared before a Regional Magistrate at Bulawayo on the 4th of November 2020 facing a charge of rape  as defined in section 65 of the Criminal Law Codification and Reform Act (Chapter 9:23).  Applicant was sentenced to 15 years imprisonment of which 5 years imprisonment was suspended for 5 years on the usual condition of future good conduct.</p> <p>The applicant now applies for condonation for the late filing an appeal.  A further application for leave to prosecute the appeal in person is made to this court.  The state opposes the application.</p> <p><strong>Basis for the application</strong></p> <p>            Applicant avers that the delay was occasioned by his desire to engage a legal practitioner to represent him in noting and prosecuting the appeal.  Applicant contends that due to financial constraints he was unable to secure the services of a lawyer of his choice.  Applicant goes further to state that his explanation is reasonable in the circumstances, and he has realistic channels of success on appeal.  Applicant was represented throughout the trial in the court <em>a quo,</em> however he is now applying for condonation and seeks the leave of this court to prosecute the appeal in person.</p> <p><strong>Factual background</strong></p> <p>            The facts leading to the conviction of the applicant are that a nineteen year old complainant Tsitsidzashe Dhliwayo was at a shrine at a bushy area in Westgate, Bulawayo on 30th September 2018. Applicant who was a self-proclaimed prophet raped complainant and had sexual intercourse with her without her consent.  Applicant had lured the complainant to a secluded pit where he ordered her to go lie down facing upwards, claiming that he was exorcising evil spirits that were tormenting her.  Complainant reported the matter to her aunt soon after the incident.  In his defence applicant denied having sexual intercourse with the complainant.  The court <em>a quo</em> accepted the complainant’s narration of events and duly convicted the applicant.</p> <p><strong>Principles for granting applications for late noting of an appeal</strong></p> <p>            The factors that have to be considered in an application for the late noting of an appeal have been established in several cases.  In <em>Kombayi</em> v <em>Berkhout</em> 1988(1) ZLR 53 (S) the court held that the test to be applied is:</p> <ol> <li> the length of the delay</li> <li>the reasonableness of the explanation</li> <li>the prospects of success on appeal.</li> </ol> <p>The sentence was handed down on 4th November 2020.  The application was lodged on 25th March 2021.  There has been an inordinate delay in noting the appeal.  The applicant was defended from the onset and throughout the trial.  He now avers that he is a self-actor.  He asserts that the court <em>a quo</em> made a misdirection by taking the side of the witness who contributed each other and were unreliable.  Applicant says he was financially constrained to engage the services of a legal practitioner.  Applicant must observe that applications for condonation are not just there for the taking.  The applicant has filed a detailed application for condonation with decided cases in support of his application.  An application of this nature was most likely made with the assistance of a lawyer.  Indeed in several such cases, applications are made by convicted persons from prison and all the applicant must show is the genuine desire to lodge an appeal.  It has become a lame excuse for several litigants to simply allege that they lacked the financial resources to engage lawyers.  This is the case in this application.  There is no reasonable explanation given for the delay.  The delay is inordinate.</p> <p>            In an application for condonation for the late noting of an appeal and applicant must demonstrate that there are prospects of success.  The test for prospects of success was well articulated in <em>S</em> v <em>Chikumba</em> HH-724-15.  In that case the court held that the prospects of success exist where an appeal is free from predictable failure.  The appeal must not be hopelessly doomed to fail.  The question is therefore not whether there is room for difference of opinion <em>vis-à-vis</em> the impugned conviction or sentence. In this matter, the applicant avers that the conviction is irregular because the trial court misdirected itself in ruling that the witnesses were believable yet they did not corroborate each other. An appeal court rarely interferes in matters of the assessment of evidence by a lower court.   The  applicant further states that since the court was aware that he was serving 12 years for another rape in a conviction imposed at Gweru Regional Court, the court <em>a quo</em> was supposed to order that the sentences should run concurrently. This on its own is not a misdirection.  There is no rule of thumb that such sentences should run concurrently.  A reading of the record reveals no such misdirection.</p> <p>As regards the analysis of the analysis of the evidence by the court <em>a quo</em>, in my view the trial magistrate properly applied his mind to the evidence presented to him.  The trial court’s findings, which are well reasoned cannot be faulted.  The state succeeded in attaining the threshold of proof beyond reasonable doubt.  The applicant’s defence that he had no sexual contact with the complainant was clearly false in view of the clear evidence of the complainant.  The discrepancies in the evidence of the state witnesses was so insignificant that the requirement of proof beyond reasonable doubt was met.  In so far as sentence is concerned, the applicant cannot choose what sentence he thinks ought to be imposed.  Rape is a serious crime that violates and traumatizes the victim.  The complainant in this case was tricked into unwanted sexual intercourse.  She felt violated hence her early report to her aunt.  There was no reason for her to concoct a false story of rape.  The sentence of 15 years with 5 years suspended is within the range of sentences imposed for rape cases.  A lessor sentence would have been inappropriate in the circumstances.</p> <p>            A finding that there is no reasonable explanation for the delay in noting an appeal and that there are no prospects of success leads to an inevitable outcome that this application should not find favour with the court.</p> <p>For the foregoing reasons, the application is hereby dismissed.</p> <p> </p> <p><em>National Prosecuting Authority,</em> respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/96/2021-zwbhc-96.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19769">2021-zwbhc-96.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/96/2021-zwbhc-96.pdf" type="application/pdf; length=318407">2021-zwbhc-96.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-lodge-memorandum-appeal-out-time">Application to lodge memorandum of appeal out of time</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape">Rape</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/724">S v Chikumba (B 532/15 Ref Case No. CA 344/15) [2015] ZWHHC 724 (09 September 2015);</a></div></div></div> Thu, 10 Jun 2021 13:08:26 +0000 Sandra 10050 at https://old.zimlii.org S v Mutsure (SC 62-21, Criminal Appeal No. SC 731/18) [2021] ZWSC 62 (20 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/62 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. SC 62/2021</strong></p> <p><strong>Criminal Appeal No. SC 731/18</strong></p> <p>                                                                                   </p> <p><strong>REPORTABLE</strong><strong>        (59)</strong></p> <p> </p> <p> </p> <p><strong>KIZITO     MUTSURE</strong></p> <p><strong>                                                                          v        </strong></p> <p><strong>THE     STATE</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAVANGIRA JA, UCHENA JA AND MAKONI JA</strong></p> <p><strong>HARARE: 28 JANUARY 2020 &amp; 20 MAY 2021</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Mpofu </em>with <em>T.L. Mapuranga </em>and <em>A. Rubaya, </em>for the appellant</p> <p><em>T. Mapfuwa,</em> for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA: </strong></p> <ol> <li>This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder.</li> </ol> <p> </p> <ol> <li>The appellant was charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [<em>Chapter</em> <em>9:23</em>]. The allegation was that on 23 October 2011 at house number 221 Ephraim Blank Street, Chivhu, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her on fire causing severe burns all over her body, from which injuries she died on 26 October 2011.</li> </ol> <p> </p> <p> </p> <ol> <li>The appellant pleaded not guilty to the charge alleging that the deceased had poured paraffin over her body and set herself alight. He was convicted after a full trial and sentenced to 13 years’ imprisonment.</li> </ol> <p> </p> <ol> <li>The State’s case was based largely on circumstantial evidence. The State led evidence from three witnesses; Tawanda Miti (Miti), a police officer, his wife Nyasha Tsopotsa (Tsopotsa) and Sekai Guramatunhu (Guramatunhu), also a police officer. The evidence of Miti was to the effect that his wife and he shared the same residence with the deceased. They lived in adjoining rooms that shared the same veranda. Each room had its own entrance door from the common veranda. The deceased occupied one room at the furthest end. The witness, together with his wife and brother, occupied the next two rooms after the deceased’s. The fourth door led into a common washroom and toilet. Behind the toilet was a water tap.</li> </ol> <p> </p> <ol> <li>During the night in question, after having retired to bed, he was awoken by the screaming of a person calling out his name. He went out of his room and saw flames of fire inside the deceased’s room. He next saw the appellant arriving on the veranda. He instructed the appellant to put out the fire that was burning in the deceased’s room. He next saw the deceased coming from behind the residence in the direction of where the water tap was. He observed burn injuries on the deceased’s body. The deceased said to the appellant words to the effect “Why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”</li> </ol> <p> </p> <ol> <li>The deceased kept on saying this and went on to tell the witness that the appellant was in possession of the matches which he had used to set her ablaze after he had poured paraffin on her from a paraffin stove. The witness inquired from the appellant who told him that the deceased had set herself ablaze. The witness gave instructions for the deceased to be wrapped in a cloth. He, in the company of his brother, drove the appellant and the deceased to Chivhu Police Station where the appellant was searched and the matches was found in his pocket. He thereafter drove the deceased to hospital.</li> </ol> <p> </p> <ol> <li>The witness was found to be a honest, impressive and reliable witness in the assessment of the court <em>a quo</em>.</li> </ol> <p> </p> <ol> <li>The second witness, Tsopotsa’s evidence was to the effect that as they were asleep during the night of 23 October she heard the deceased screaming “mai wee ndofa” which was translated to mean “mother I am dying.” Soon thereafter she heard the sound of a door being opened. She heard footsteps going to the backyard at the same time as the deceased yelled “Brandon’s father!”, a reference to the witness’ husband. In response, her husband went out with her in tow. She saw the deceased standing by the doorway to the toilet. The half petticoat that the deceased was wearing had been burnt and was stuck to her body. She had burn injuries on her body. The appellant was standing by the deceased’s doorway. The deceased accused the appellant of setting her alight and demanded that he finishes her off as he had been ill treating her for too long. The appellant, on the other hand, was saying that the deceased had burnt herself. The witness also saw smoke coming out of the deceased’s room.</li> </ol> <p> </p> <ol> <li>The witness was instructed by her husband to find something to wrap the deceased with as she was virtually naked. She took a sheet from the deceased’s bed and wrapped her with it before her husband instructed the deceased to get into the vehicle so that they could proceed to the hospital. The appellant also boarded the same vehicle and they left.</li> </ol> <p> </p> <ol> <li>As with Miti, the court <em>a quo</em> was impressed by the witness’ demeanour. It found that her evidence was largely corroborative of that of Miti. The court <em>a quo</em> also noted that the witness’ evidence that the deceased accused the appellant of persistent harassment and further said that the appellant ought to have finished her off was not disputed or challenged in cross examination. The court thus accepted that the deceased uttered the words testified to by the witness.</li> </ol> <p> </p> <ol> <li>Sekai Guramatunhu was the State’s third and last witness. On the night in question at around 2:00 or 3:00 am she was at the police station when Miti entered the charge office with the appellant. After Miti made a report to her she went outside to where Miti’s vehicle was. Inside the vehicle was the deceased who was in pain. She observed the injuries that the deceased had sustained and suggested that she be ferried to the hospital. The appellant followed her to the vehicle and told her not to talk to the deceased as she had been burnt. She assumed that the appellant’s utterance was because the deceased was in pain.</li> </ol> <p> </p> <p> </p> <ol> <li>The defence applied for discharge at the end of the State case in terms of s 198 (3) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>]. The State consented to the application. The court <em>a quo</em> had a different view and it dismissed the application on the basis that the evidence that the State had adduced raised a <em>prima facie</em> case that the appellant had to answer.</li> </ol> <p> </p> <ol> <li>In its ruling the court <em>a quo</em> stated <em>inter alia</em>:</li> </ol> <p>“In short the accused does not deny being in the company of the complainant (sic) at the time that this incident took place. The deceased ended up dead in circumstances where there were certain utterances which intended (sic) to lead to an inference that the accused may well have had something to do with this matter. It is only fair that the court is placed in a position to get the whole story of what took place. The accused is the only person who was there who can give such story. That application is dismissed.”</p> <p>    </p> <p>     </p> <ol> <li>The appellant’s evidence was to the following affect. The deceased was his second wife and had been so for five years. He had no children with her but had four children with his first wife. On 23 October 2011 he arrived at the place where the deceased was staying at about 1:00am. The deceased opened the door for him and they exchanged greetings. She went back to bed and he “sat on a chair which was next to the table and this table is located next to the bed.” He advised her that there were some issues that he wanted to talk to her about. She got out of bed and got dressed in a skirt and a blouse. She went and sat across the table opposite to where the appellant was seated.</li> </ol> <p> </p> <ol> <li>When asked what sort of conversation he had with her he said:</li> </ol> <p>“I then advised her that she was in the habit of going to the bars in my absence. I even went to tell her (sic) the names of the persons who had told me this information. These people were my relatives and were actually known to her. … They are two of my brother’s sons. … I then advised her that by going to the bars like what she was doing these young men were actually seeing them (sic) and as such was causing a lot of embarrassment. … She was silent during the time that I was telling her that. But she suddenly got up and said that she was going to set herself alight. … During the time that she was making that utterance she was actually making the way to the stove that was located next to the bed. … It was a pram (primus) stove that normally uses paraffin. I had eventually bought that paraffin stove for use during the time that there will be no electricity. … She suddenly got up, grabbed the stove and poured the paraffin on herself. … She let go the stove and she quickly grabbed the matches. It was during the time that I quickly grab (sic) (grabbed) her by both hands as I was afraid that she might strike the matches. I then kept a firm grip on the hand holding the matches in order that she will not be able to lit (sic) (light) the matches. I took the matches from her and placed it in my pocket. … I then asked her why she wanted to set herself on fire. … She did not respond and she went back and sat on the chair and I sat back on my chair. I then asked her why she wanted to set herself on fire and that I was just reprimand(ing) her not that I no longer loved her. … She did not reply. I then kept on telling her to desist from her behaviour and that I was going to continue maintaining her as I have (sic) been doing before. Thereafter she first remained silent. I then started to contact her aunt and her sisters unfortunately I failed to get through to them. I continued sitting down trying to cool her down whilst advising her to desist from her behaviour. It was after some time had lapsed whilst I was trying to contact her aunt and her young sister and I was failing to get through. So we sat for quite some time … I was afraid to leave as I thought that maybe she might do something. It was after we had settled for quite some time that she might have noticed that I was dozing as it was during the night that she took advantage because I just suddenly heard the sound of a chair being moved. When I got up she had already stood up and rushed to get another box of matches that I had not noticed.”</p> <p> </p> <p> </p> <ol> <li>The appellant was asked how much time had elapsed between the time that she poured paraffin on herself and the time when she rushed to get another box of matches. His response was “I think about 30 minutes when I was talking to her.”</li> </ol> <p> </p> <ol> <li>He proceeded to state as follows:</li> </ol> <p>“When I heard the sound of the chair and I got up he (sic) (she) was already stood up (sic) and picked up the matches box (sic) and she then struck the matches. I also assumed that because of the time that we had spent after she had poured paraffin on herself that maybe it might have vapoured off. She actually directed the flame of the match on the bottom but it failed to catch and she put it under her arm and she then caught the fire. … She then screamed whilst advancing towards me. … She appeared she actually wanted to grab me by the neck, but she missed, then she grabbed me by one of my hand(s) on the upper arm. During the time she was now on fire. She actually held me in an indication that she did not want to let me go (sic). It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tape (tap) so that I put out the fire. She left hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head (sic) and all the body. (my emphasis)</p> <p> </p> <p> </p> <ol> <li>It is opportune to briefly digress at this stage and take note that in his confirmed warned and cautioned statement the appellant did not make any mention of having dozed off. He said that after setting herself on fire the deceased embraced him and he opened the door whilst she was so embracing him. He stated <em>inter alia</em>:</li> </ol> <p>“She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding. Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches (sic) and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tape (sic) where she poured some water on her. (sic) I followed her to the tape, (sic) helped her to extinguish the fire. I then went into the house to extinguish (the) fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time.”</p> <p>         </p> <ol> <li>The appellant further stated in his testimony before the court <em>a quo</em> that after putting out the fire he rushed towards the veranda where Miti gave him a bucket which had water in it and told him to put out a fire that was burning inside the deceased’s room. Inside the room he saw something that was burning on the floor. It appeared to be a skirt and he poured water on it thereby putting out the fire. There was another fire burning at the spot where the deceased had poured paraffin on herself. After putting out the fire in the room he went outside and in his words he found the deceased “telling Miti and others that I had actually poured paraffin on her and set her on fire. But I actually denied that and advised that she had done that to herself. But after I had advised her that I am not the one who had poured paraffin on her, she then kept silent on that aspect.”</li> </ol> <p> </p> <p> </p> <ol> <li>The appellant was asked how many minutes elapsed between the time that he put out the fire on her at the tap and the time that he found her alleging to Miti and others that he had set her on fire. His answer was “I think the incident could have taken about five minutes.” He stated that when she was making the allegation she was no longer on fire as he had doused it.</li> </ol> <p> </p> <ol> <li>It was also the appellant’s evidence that during the time that the deceased was on fire and was crying out he could not make out what she was saying.</li> </ol> <p> </p> <ol> <li>Under cross examination the appellant said that the deceased called out to Miti after he had put out the fire that was burning her and as he was putting out the fire in her room. He said that the deceased only screamed out the words “oh mother I am dying” after he had put out the fire on her. He further said that the deceased was lying about everything that she was saying to Miti and the others. He accepted that the deceased did ask him why he had not also burnt himself. He said that she was lying but he thought that it was no use arguing with her considering the state of her injuries at the time and his concern was to seek medical attention for her.</li> </ol> <p> </p> <ol> <li>As to why he had not asked or caused the deceased to remove the clothes on which she had poured paraffin his response was that he did not think of it and that he thought the clothes would dry up. He also thought that the deceased made the utterances that she made against him in order to “fix” him because he had exposed her infidelity of being seen in bars with other men.</li> </ol> <p> </p> <ol> <li>The court <em>a quo</em> convicted the appellant on the basis that the circumstantial evidence placed before it proved beyond reasonable doubt that he had committed the offence. It also found that the State witnesses were credible witnesses. It concluded that the utterances made by the deceased constituted <em>res gestae</em> and were admissible against the appellant. It was the court <em>a quo</em>’s view that the issue was whether it was the appellant who had poured paraffin on the deceased and set her ablaze resulting in the injuries from which she died and that the absence of a post mortem report was not fatal to the State case. It concluded that it was the appellant who had poured paraffin on the deceased and set her ablaze.</li> </ol> <p> </p> <ol> <li>The appellant raised the following five grounds of appeal against his conviction and one against sentence:</li> </ol> <p>“1. The Court <em>a quo</em> erred in coming to the conclusion that the State had proved beyond any reasonable doubt the appellant doused Modester Chikaka “the deceased” with the paraffin and set her alight in the absence of admissible evidence supporting that conclusion.</p> <p>2. The Court <em>a quo</em> lost its path in concluding that the deceased died from the fire in the absence of a post-mortem report supporting that finding.</p> <p>3. The trial court erred in misapplying the doctrine of <em>res gestae</em> by admitting inadmissible hearsay evidence of the deceased in circumstances where the State had not satisfied the pre-requisites of such admissibility.</p> <p>4. The Court <em>a quo</em> misapplied rules of circumstantial evidence and misdirected itself by making a finding that the appellant committed the <em>actus reus</em> of murder in the absence of any proved facts from which that inference could be drawn.</p> <p>5. The Court <em>a quo</em> fell into error by summarily rejecting the appellant’s defence as inherently improbable that it could not reasonably be said to be true in circumstances where the evidence before it supported such a defence.</p> <p>AD SENTENCE</p> <ol> <li>The Court <em>a quo</em> erred in imposing a disturbingly severe sentence in circumstances where the Court <em>a quo</em> had made (a) finding that appellant’s mitigation was considerably weighty.”</li> </ol> <p> </p> <p> </p> <p><strong>ISSUE TO BE DETERMINED</strong></p> <ol> <li>The issue to be determined is whether or not the State proved the appellant’s guilt beyond reasonable doubt.</li> </ol> <p> </p> <p> </p> <ol> <li>Mr <em>Mpofu,</em> for the appellant, based his oral submissions before us on five points. The first, which he indicated was not covered in his heads of argument, was that the court <em>a quo</em> proceeded under circumstances of an irregularity, the irregularity being that the summary of the State case contained allegations on which no evidence was led by the State, that such irregularity was designed to undermine the appellant’s defence and colour the court’s mind and that both these aims were achieved.</li> </ol> <p> </p> <ol> <li>From the other four points that he said were covered in his heads of argument, the second point was that on the application of the proper legal test, it cannot be said that the defence put forward by the appellant in the court <em>a quo</em> was false and consequently worthy of the rejection by the court. </li> </ol> <p> </p> <ol> <li>The third point was that the cause of death was not established in the court <em>a quo</em>.</li> </ol> <p> </p> <ol> <li>The fourth point was that the court <em>a quo</em> irregularly admitted inadmissible hearsay evidence and went on to found its judgment on such inadmissible evidence.</li> </ol> <p> </p> <ol> <li>The fifth and final point was that the requirements for a conviction based on circumstantial evidence were not met <em>a quo</em>.</li> </ol> <p> </p> <ol> <li>With regard to the first point the contention was that the State made damning but false allegations against the appellant on which no evidence was led. Specific reference was made to paras 2, 3 and 4 of the Summary of the State case as reflected at p 2 of the record of proceedings. Mr <em>Mpofu</em> particularly highlighted para 3 which reads:</li> </ol> <p>“The accused proceeded to take a paraffin stove which was in the room and poured the paraffin onto the deceased. He took a box of matches from his trousers pocket, lit one match stick and threw it on the deceased’s body setting her alight.”</p> <p> </p> <p> </p> <ol> <li>It is my view that if the court <em>a quo</em> convicted the appellant purely on the basis of what is stated in the State Summary and not on the basis of the evidence that was placed before it, then it goes without saying that the conviction would be baseless and would not survive this appeal. If, as alleged, the court’s mind was “coloured” and the appellant’s defence “undermined” by the averments in the State Summary, such should be discernible from a reading of the court’s judgment as it would have no cogency on the basis of the evidence that was placed before it. In this regard I also take it that by the use of the word “coloured” the defence meant that the court <em>a quo</em> was unduly influenced in a negative manner to the prejudice of the appellant.</li> </ol> <p> </p> <ol> <li>It is trite that an appeal to this Court is based on the record. It is also trite that an appellate court will not interfere with the decision of a trial court or tribunal unless the trial court or tribunal fundamentally misdirected itself in arriving at its decision. It is trite that an appellate court will not lightly interfere with a trial court’s factual findings.</li> </ol> <p>   </p> <ol> <li>It is common cause that the appellant’s conviction was not based on direct evidence. There was only circumstantial evidence that was adduced before the court <em>a quo</em>. I might at this stage deal with and comment on the issue raised that the cause of the deceased’s death was not established. On this aspect the court <em>a quo</em> stated:</li> </ol> <p>“In reasoning that a <em>prima facie</em> case was established in relation to the main charge, I do so mindful of the defence argument that a post mortem report was not produced. I however considered that proof of death may arguably be established from the fact that no issue is taken by the accused to the allegation that the deceased died of burn injuries as alleged in the indictment.”</p> <p> </p> <p> </p> <ol> <li>In this regard para 3 of the appellant’s Defence Outline is, in my view, pertinent. It reads in part:</li> </ol> <p>“The accused will further state that the now deceased caused her own demise by pouring herself paraffin (sic) and setting herself alight.” (the underlining is mine)</p> <p> </p> <p>Significantly, the Defence Outline which is in response to the allegations in the State Summary, does not question or dispute the State’s averment that “the deceased later died on 26 October 2011 from the injuries she had sustained.” Notably, the death occurred on 26 October 2011, some three days after the deceased sustained the burn injuries. The differing assessments of plus or minus 35 per cent and 76 per cent respectively, as given by two different doctors with regard to the percentage degree of burns on the deceased, do not, in my view, impact negatively against the State case in the circumstances. The doctor who saw the deceased at Chivhu Hospital on 23 October 2011 at about 0300 hours observed that she had “large surface area burns of plus or minus 35% of body surface.” The doctor who saw her on the following day at Harare Central Hospital at about 1020 hours observed “76 per cent open flame burns on torso, lower limbs and upper limbs and neck and …”</p> <p>This disposes of Mr <em>Mpofu’s</em> third point.</p> <p> </p> <ol> <li>It must not be overlooked that the <em>onus</em> on the respondent was to prove its case against the appellant beyond reasonable doubt. Mr Mpofu’s second, fourth and fifth points revolve around the issues of the application of the evidential rules relating to <em>res gestae</em> and to circumstantial evidence. The circumstantial evidence is made up of different aspects of the events that took place as the incident unfolded. The deceased’s utterances the subject of the conflicting contentions regarding hearsay evidence with particular reference to <em>res gestae</em> form one of the weighty aspects, among others, that emerge from the evidence that was placed before the court <em>a quo</em>. The admissibility of the evidence of those utterances has been hotly contested by the Defence.</li> </ol> <p> </p> <ol> <li>What clearly emerged from the evidence by the State witnesses, which evidence the trial court accepted, was that during the time that the deceased was on fire she called out “oh mother I am dying” and she also called out Miti’s name. Soon after the fire that was consuming her had been doused and as soon as she saw Miti who she had called out to, she told him (Miti) and the others who had come out that the appellant had poured paraffin on her and set her alight. The defence’s contention is that this was hearsay evidence of utterances that did not amount to a spontaneous exclamation of a statement at the time of the relevant event, which would at common law constitute <em>res gestae</em>. The submission was made that the deceased had had ample time for cogitation in the five minutes that elapsed from the time that she was burning, attempting to put out the fire, running to the tap and running back and then making the allegation, such that whatever she said at that stage could not qualify as part of the <em>res gestae</em>.  The argument was that the spontaneity requirement was not met.</li> </ol> <p> </p> <ol> <li>Mr <em>Mapfuwa</em>, for the respondent, on the other hand submitted that the court <em>a quo</em> decided that the deceased’s utterances were <em>res gestae</em> because she had screamed out and footsteps were heard by the first and second witnesses and that immediately upon returning from the water tap she had accused the appellant of having doused her with paraffin and set her on fire. He submitted that the court <em>a quo</em> cannot be faulted for its finding that the failure by the deceased to name the appellant at the time that she was burning cannot be held against her if regard is had to the fact that at the first opportunity when she was no longer on fire she named the appellant as the culprit. Furthermore, that this was in the presence of the appellant at the scene.</li> </ol> <p> </p> <ol> <li>Mr <em>Mapfuwa</em> cited the case of <em>R v Andrews</em> [1987] 1 All ER 513 in support of his argument as regards spontaneity in cases involving <em>res gestae</em>. In his heads of argument he gave the following quote purportedly from the case but did not give the specific page at which it appears in the law report:</li> </ol> <p>“the test used by the courts in determining spontaneity is not necessarily one of exact spontaneity that is defined with mathematical precision. It is sufficient to establish approximate or substantial spontaneity.”</p> <p> </p> <p> </p> <p>It was his submission that the court <em>a quo</em> correctly observed that to fault the deceased for not mentioning the appellant’s name at the time that she was on fire would be to take an armchair approach. It was also his submission that it is necessary to consider the totality of the evidence adduced and ascertain whether there was a break in the chain of events. He referred specifically to p 26 of the record where the following exchange took place between the defence counsel and the witness Miti during cross examination:</p> <p>“Q. How many minutes lapsed from the time you heard the scream and the time that you then saw the now deceased coming from the tap direction? A. Judging from the events it could be less than a minute.”</p> <p> </p> <p>I need to point out that in my reading of the judgment in <em>R v Andrews</em> (<em>supra</em>) I was unable to locate the quotation cited by Mr <em>Mapfuwa</em>.</p> <p>         </p> <ol> <li>I make note at this stage that Mr <em>Mpofu’s</em> comment on this English authority was that its full content was not captured in the excerpt quoted by Mr <em>Mapfuwa</em>. He submitted that the uncaptured aspects are firstly, that if a statement is made after the event, it ordinarily falls outside spontaneity. Secondly, if the statement is to be received in evidence there is a mandatory procedure to be followed in the Supreme Court of Judicature after which a preliminary ruling must be made by the judge. Thereafter, evidence of the statement   can be given. He likened the procedure to a trial within a trial in which the court must deal with and answer what he referred to as the recurring question “At what stage did this end?” In <em>casu,</em> so he submitted, because the statement was said after the deceased had seen a third party, there are dangers that the deceased had had time for reflection.</li> </ol> <p>  </p> <ol> <li>In my reading of the <em>Andrews</em> judgment I was unable to locate the part of the report that specifically stipulated or referred to the procedure that he referred to and which he likened to the procedure of a trial within a trial (if I understood his submission correctly). The facts in the <em>Andrews</em> matter as summarised in the headnote are as follows:</li> </ol> <p>“The appellant and another man knocked on the door of the victim’s flat and when the victim opened it the appellant stabbed him in the chest and stomach with a knife and the two men then robbed the flat. The victim was found some minutes later. The police and they arrived very soon after. The victim, who was seriously wounded, told the police that he had been attacked by two men, gave the name of the appellant and the name and address of the other before becoming unconscious. He was then taken to hospital where he died two months later. At the trial of the appellant for murder the Crown sought to have the victim’s statement to the police admitted in evidence. The trial judge ruled the statement was admissible. The appellant was convicted of manslaughter. He appealed to the Court of Appeal, contending that the victim’s statement was i9nadmissible under the rule against the admission of hearsay evidence. The appeal was dismissed and the appellant appealed to the House of Lords.</p> <ul> <li>– Hearsay evidence of a statement made to a witness by the victim of an attack describing how he had received his injuries was admissible in evidence, as part of the <em>res gestae</em>, at the trial of the attacker if the statement was made in conditions which were sufficiently spontaneous and sufficiently contemporaneous with the event to preclude the possibility of concoction or distortion. In order for the victim’s statement to be sufficiently spontaneous to be admissible it had to be so closely associated with the event which excited the statement that the victim’s mind was still dominated by the event. If there was a special feature, eg malice, giving rise to the possibility of concoction or distortion the trial judge had to be satisfied that the circumstances were such that there was no possibility of concoction or distortion. However, the possibility of error in the facts narrated by the victim went to the weight to be attached to the statement by the jury and not to admissibility. Since the victim’s statement to the police was made by a seriously injured man in circumstances which were spontaneous and contemporaneous with the attack and there was no possibility of any concoction or fabrication of identification, the statement had been rightly admitted in evidence. The appeal would accordingly be dismissed. … <em>Ratten v R </em>[1971] 3 All ER 801 applied.</li> </ul> <p><em>R v Beddington </em>(1879) 14 Cox CC 341 overruled. (my emphasis)   </p> <p> </p> <ol> <li>I however found the following useful exposition by Lord WILBERFORCE in <em>Ratten v R</em> [1971] 3 All ER 801 at p 807 a-e, (a case cited by Lord ACKNER in his speech):</li> </ol> <p>“The person testifying to the words used is liable to cross-examination: the accused person … can give his own account if different. There is no such difference in kind or substance between what was said and evidence of what was done (for example between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.</p> <p>The possibility of concoction or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should not be the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event <strong>it must be for the judge</strong>, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should not be the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression ‘<em>res gestae</em>’ may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges’ rulings.” (my emphasis)</p> <p> </p> <p> </p> <ol> <li>His Lordship also referred to the case of <em>O’Hara v Central SMT Co</em> 1941 SC 363 where at p 381 the Lord President (Lord Normand) said that “there must be close association: the words should be at least <em>de recenti</em> and not after an interval which would allow time for reflection and concocting a story.” He further quoted Lord Fleming who at p 386 said:</li> </ol> <p>“Obviously statements made after there has been time for deliberation are not likely to be entirely spontaneous, and may, indeed, be made for the express purpose of concealing the truth.” (my emphasis)</p> <p> </p> <p> </p> <ol> <li>He further pertinently states at p 808 f-g:</li> </ol> <p>“These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.” (my emphasis)</p> <p> </p> <p>And, at p 809 b:</p> <ul> <li> </li> </ul> <p> </p> <p>Finally, at p 808 d he stated as follows:</p> <p>“… In an earlier case in the High Court (<em>Brown v R </em>(1913) 17 CLR 570) where evidence was excluded, Isaacs and Powers JJ in their joint judgment (at 597) put the exclusion on the ground that it was a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main narration but arising as an independent and additional transaction.” (my emphasis)</p> <p> </p> <p> </p> <p> </p> <ol> <li>In <strong>Principles of Evidence</strong> 4 ed (Juta) the learned authors <em>Schwikkard and van der Merwe,</em> under the heading “<em>Res gestae</em> statements” state that the phrase <em>res gestae</em> does not lend itself to any meaningful translation but that the phrase has developed a meaning in the law of evidence and is succinctly stated by Choo (in <strong>Evidence</strong> (2012) 292) as follows:</li> </ol> <p>“Evidence of facts may be admissible as part of the <em>res gestae</em> if these facts are so closely connected in time, place and circumstances with some transaction which is at issue that they can be said to form part of that transaction.”</p> <p> </p> <p>Under the subheading “Spontaneous statements” the learned authors state that the reasoning behind the admission of spontaneous statements was that despite their hearsay nature, they are the product of an instinctive response and therefore less likely to be an invention or deliberate distortion. Furthermore, for the statement to be regarded as spontaneous it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the “event” dominated the mind of the declarant at the time of uttering the statement.</p> <p> </p> <ol> <li>The learned authors further refer to the case of <em>S v Tuge</em> 1966 (4) SA 565 (A) wherein “[T]he court held that the following conditions needed to exist for a <em>res gestae</em> statement to be admitted into evidence: (a) ‘the original speaker must be shown to be unavailable as a witness’; (b) ‘there must have been an occurrence which produced a stress of nervous excitement’; (c) ‘the statement must have been made whilst the stress was still “so operative on the speaker that his reflective powers may be assumed to have been in abeyance”’; (d) ‘the statement must not amount to a reconstruction of a past event’”</li> </ol> <p> </p> <ol> <li>Against the above backdrop of the position of the law relating to <em>res gestae</em> I am unable to find fault with the manner in which the court <em>a quo</em> dealt with the issue of <em>res gestae</em> when it stated as follows:</li> <li> </li> </ol> <p> </p> <p> </p> <ol> <li>As with any other matter, each case must be decided on its own merits. <em>In casu</em>, on a view of the evidence adduced before the trial court and on a consideration of the manner in which the events unfolded as well as the time frame within which it all happened, the court <em>a quo</em> cannot be faulted when it stated that “(I)t cannot be said that there was no spontaneity in the exclamation.” As commented by Lord Wilberforce at p 806 h-j:</li> </ol> <p>“The reason why this is so” (that is the application of different standards to the admissibility of the hearsay statement) “is that concentration tends to be focused on the opaque or at least imprecise Latin phrase rather than on the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been the victim of assault or accident.”</p> <p> </p> <p> </p> <ol> <li>As to the actual words used by the deceased, the court <em>a quo</em> cannot be faulted for believing the State witnesses. The appellant did not dispute the evidence of the State witnesses as to what was uttered whilst the witnesses were still in their room. He would naturally not have been able to challenge the witnesses as his evidence was that he could not make out what the deceased was saying as she was screaming. The witnesses said that they were awoken by the deceased’s screaming out “oh mother I am dying!” as well as calling out to the first witness by the deceased. Further, the appellant did not dispute that the deceased uttered the words attributed to her by the witnesses after she came back from the tap at the back of the rooms and soon after the fire on her had been extinguished. The deceased had burn injuries and as a result her undergarment was sticking onto her body. It is at that stage in the unfolding drama that the deceased said that the appellant had poured paraffin on her and set her alight and that he had the match box on him. As it turned out the box of matches was recovered from the appellant when he was subjected to a bodily search by the police, <em>albeit</em> he had a different explanation for his possession of it. The deceased also asked why the appellant had not also poured paraffin on himself as he had said that he wanted both of them to die. According to Tsopotsa she also said to the appellant that he should finish her off as he had been tormenting or ill-treating her for a long time.</li> </ol> <p> </p> <ol> <li>There is another consideration that buttresses the court <em>a quo</em>’s assessment of the evidence that was placed before it.  Notably, it was the appellant’s stance that all that the deceased said in the presence of the State witnesses were all lies. By implication, the appellant’s contention was that the deceased deliberately concocted a false story, to his disadvantage. It was thus the defence’s argument that the said utterances ought not to have been accepted or admitted as part of the <em>res gestae</em>. On this aspect the trial court dispelled the risk of concoction on the view that to hold otherwise would be to adopt or take an armchair approach. I find no misdirection by the court <em>a quo</em> in this regard on a view of the evidence that was placed before it.</li> </ol> <p> </p> <ol> <li>The citation by the defence of the case of <em>Thompson v Trevanion</em> (1693) Skin 402 ER 179 does not in my view establish any misdirection by the trial court in this regard. I say so for the reason, as already stated earlier, that it is trite that each case must be determined on its own merits. In the appellant’s heads of argument the following statement by HOLT CJ in the cited case is quoted:</li> </ol> <p>“What the wife said immediate upon the hurt received, and before she had time to devise or contrive anything for her own advantage might be given in evidence.”</p> <p> </p> <p> </p> <p> </p> <ol> <li>The court was alive to the fact that it was dealing with circumstantial evidence there being no independent witness to testify as to how the deceased ended up in flames. It rightly drew the applicable legal principles as espoused in <em>R v Blom</em> 1939 AD 188 and followed in <em>Zacharia Amos Simango v S</em> SC 42/14, <em>Abraham Mbovora v S</em> SC 75/14. The two cardinal rules on circumstantial evidence have been stated to be:</li> </ol> <p>“1. The inference to be drawn must be consistent with all the proven facts –</p> <ol> <li> </li> </ol> <p> </p> <p> </p> <ol> <li>The court isolated the issue that needed to be answered by the circumstantial evidence, viz, “whether or not the deceased poured paraffin upon and burnt herself or it was the accused who set her alight after pouring paraffin on her.”</li> </ol> <p> </p> <ol> <li>On the evidence that was placed before the trial court there are certain baseline facts that stand out. The appellant was the only person with the deceased in her room when she called out the first witness’ name and screamed. The deceased did not call for assistance from the appellant, whether on the appellant’s evidence or on the evidence of the State witnesses.  She called out to Miti. The appellant himself, a frequent visitor to the premises according to the evidence of the State witnesses, did not call out for help from the deceased’s neighbours who he must have known to be in their own rooms. Thereafter the deceased pointed to the appellant as the person who had doused her with paraffin and set her on fire. Another notable aspect is that the appellant said that the deceased got dressed in a skirt and blouse when he indicated that he wanted to have a discussion with her. But when the deceased was seen by her neighbours when they reacted to her distress call she was observed wearing only a petticoat that was now stuck to her body due to the burning.  There was no explanation by the appellant as to how the skirt that he found burning on the floor after he came back to the room had got there.</li> </ol> <p>In the circumstances, I find no misdirection on the part of the court <em>a quo</em> when it found as follows:-</p> <p>“… The complainant was heard screaming and calling out to neighbours.She did not call out to the accused person.If indeed the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to and in her presence to assist her or come to her aide (sic).It was most improbable that the deceased would in the process of seeking assistance have reached for people far away from her.”</p> <p> </p> <ol> <li>The court <em>a quo </em>correctly noted that the appellant came to visit the deceased in the dead of night and that he had a grievance that he wanted to raise with her about her reported behaviour. It was the trial court’s finding that the appellant must have been incensed and that his interrogation of the deceased was unlikely to have been amicable as he wanted the court to believe. The trial court found the appellant’s narration of events as regards the deceased’s reaction to his questions to be “illogical and improbable to a point that it can safely be said not to have happened.”  The court found it to be improbable that after she was asked as to why she went to bars in the absence of the appellant, she responded by pouring paraffin on herself and setting herself alight.  I find no misdirection in this finding by the court <em>a quo</em>.</li> </ol> <p> </p> <ol> <li>In assessing the sufficiency of the circumstantial evidence that was placed before it, the court <em>a quo</em> drew guidance from firstly, the cases of <em>R v Sibanda &amp; Others</em> 1965 (4) SA 241 (R.A.) where at p 246 BEADLE CJ, dealing with circumstantial evidence, stated as follows:</li> </ol> <p>“The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together prove the guilt of an accused beyond a reasonable doubt.”</p> <ol> <li>It also referred to <em>S v Chabalala</em> 2003 (1) SACR 134 (SCA) in which at para 15 the following is stated:</li> </ol> <p>“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weighs so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an <em>ex-post facto</em> determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence. once that approach is applied to the evidence in the present matter, the solution becomes clear.” (my emphasis)</p> <p> </p> <p> </p> <ol> <li>The findings made by the court <em>a quo</em> must be viewed against the trite position at law that as the trial court, it had the advantage of seeing and hearing the witnesses as they testified to the events of the night in question. That is an advantage that an appellate court does not have. An appellate court hears an appeal on the record and cannot disregard findings made <em>a quo</em> unless a reading of the record patently does not support such findings. There is no patent misdirection in the findings of the court <em>a quo</em> discernible on a reading of the record.</li> </ol> <p> </p> <ol> <li>The court <em>a quo</em>’s finding on the appellant’s demeanour as a witness has an important bearing on the determination of his guilt by the court, particularly in circumstances where the court had found that the State had established a prima <em>facie case</em> against him and that he had to be put on his defence. Commenting on the appellant’s demeanour the court <em>a quo</em> stated:</li> </ol> <p>“… he showed some degree of annoyance and irritability when giving evidence and answers in cross examination. The court got the impression that the accused considered the trial and his being asked to give an account of events as an unnecessary bother. He appeared not to be a concerned person with the proceedings yet the victim was his second wife as <em>per</em> his testimony. The accused’s demeanour was adjudged not to be impressive.</p> <p> </p> <p> </p> <ol> <li>This finding on the appellant’s demeanour by the court <em>a quo </em>is supported and borne out by a reading of the appellant’s Confirmed Warned and Cautioned statement, his Defence Outline and his testimony in court both in chief and in cross examination. In the Warned and Cautioned statement, he said that after she had set herself alight the deceased embraced him and he opened the door while she was still embracing him. When he opened the door the fire “burned heavily” and she ran to the tap where “she poured some water on her” and he followed her and helped her to extinguish the fire. In his Defence Outline he said that after setting herself on fire the deceased “sought to embrace him intending to cause harm to him but he managed to slip away going out of the room.” He said that he also assisted the deceased to put out the fire by pouring some water on her at the water tap. In his evidence before the court <em>a quo</em> he said that the deceased wanted to grab him by the neck but she missed and grabbed hold of the upper arm of one hand. He further stated that she got,</li> </ol> <p>“hold of me in an indication that she did not want to let me go. It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tap so that I put out the fire. She get hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head and all the body.”</p> <p> </p> <p>62.     The discrepancies in the extra curial statement, the defence outline and the evidence in court in the respect highlighted above cannot be missed. Significantly, the unexplained discrepancies relate to a stage in the unfolding events that only he could give clear evidence on. He did not.</p> <p> </p> <p>In the circumstances, I find no misdirection or error in the court <em>a quo</em>’s assessment of the appellant’s demeanour.</p> <p>63.     The issue that has been raised in relation to the rejection of the appellant’s defence by the court <em>a quo</em> must not be considered in isolation. The court was obliged, as it rightly noted, to consider the totality of the evidence before it. Its reliance on the case of <em>S v Isolano</em> 1985 (2) ZLR 62 (SC) in this regard cannot be faulted. Therein LORD DENNING was quoted when he stated as follows in <em>Miller v Minister of Pensions</em> [1947] All ER 372 (KB):</p> <p>“… the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of this will suffice.”</p> <p> </p> <p> </p> <ol> <li>The court <em>a quo</em> found that on a consideration of the evidence before it and having derived   guidance from the authorities, the State had proved the appellant’s guilt beyond reasonable doubt and it therefore convicted him of murder with constructive intent.</li> </ol> <p> </p> <ol> <li>In the absence of misdirection by the trial court there is no basis for this court to interfere with the conviction.</li> </ol> <p> </p> <p> </p> <ol> <li>No submissions having been made in relation to sentence, this will be taken as a concession that the appeal against sentence has no merit. No basis has been established for interference with the same.</li> </ol> <p> </p> <ol> <li>Consequently, it is thus found that there is no merit in this appeal. It is accordingly ordered as follows:</li> </ol> <p>The appeal be and is hereby dismissed in its entirety.</p> <p> </p> <p><strong>UCHENA JA</strong>       I agree</p> <p> </p> <p><strong>MAKONI JA</strong>       I agree</p> <p> </p> <p><em>Rubaya and Chatambudza</em>, appellant’s legal practitioners</p> <ul> <li>, respondent’s legal practitioners</li> </ul> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/62/2021-zwsc-62.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=54820">2021-zwsc-62.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/62/2021-zwsc-62.pdf" type="application/pdf; length=566525">2021-zwsc-62.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/discharge-close-state-case">Discharge at close of State case</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/circumstantial-evidence">Circumstantial (EVIDENCE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/confession-evidence">Confession (EVIDENCE)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/42">S v Simango (Criminal Appeal SC 254/12) [2014] ZWSC 42 (07 May 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Tue, 08 Jun 2021 14:02:40 +0000 Sandra 10026 at https://old.zimlii.org Bonde v National Foods Limited And 2 Others (SC 11-21, Civil Appeal No. SCB 67/20) [2021] ZWSC 11 (22 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/11 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. SC 11/21</strong></p> <p><strong>Civil Appeal No. SCB 67/20</strong></p> <p><strong>DISTRIBUTABLE</strong><strong>  (10)</strong></p> <p> </p> <p><strong>TENDAI     BONDE</strong></p> <p><strong>v</strong></p> <ol> <li><strong>    NATIONAL     FOODS     LIMITED</strong></li> <li><strong>    LOVEJOY     NYANDORO     [as     chairman     of     Appeals     Committee]</strong></li> <li><strong>    CHIPO     NHETA     [as     Chairman     of     Works     Council]</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GUVAVA JA</strong></p> <p><strong>BULAWAYO, OCTOBER 15, 2020 &amp; MARCH 22, 2021</strong></p> <p>Applicant in person</p> <p><em>A. K. Maguchu</em>, for the respondent</p> <p><strong>IN CHAMBERS </strong></p> <p><strong>GUVAVA JA:</strong></p> <p>[1]        This is an application for leave to appeal from a judgment of the Labor Court. The court <em>a quo</em> found no merit in the application for leave to appeal and dismissed it, on the main that the draft notice of appeal did not raise questions of law. The applicant was dissatisfied with the judgment of the court <em>a quo</em> and filed an application for leave in terms of r 60 of the Supreme Court Rules, 2018.</p> <p> </p> <p><strong>BACKGROUND FACTS                 </strong></p> <p>[2]        The brief background of this application may be summarised as follows.</p> <p>The applicant was employed by the first respondent as a stock quality analyst. He was charged with misconduct by the first respondent on the basis that he had been found in possession of unauthorised email communication which was between Group Executives. The first respondent was of the view that the applicant’s conduct amounted to an act of unauthorised impingement of emails in the organisation. The applicants conduct was aggravated by the fact that the applicant had allegedly shared this information with other persons without the written consent of the first respondent in terms of the first respondent’s IT policy.</p> <p> </p> <p>[3]     Following a charge of misconduct, a hearing before the disciplinary committee was set down but was postponed on six separate occasions at the request of the applicant. On the final occasion, the disciplinary committee proceeded to hear the matter and found the applicant guilty in absentia.  He was subsequently dismissed from employment.</p> <p> </p> <p>[4]     Following the applicant’s dismissal, he proceeded to file an appeal with the Appeals Committee in terms of the Disciplinary Code. Again, the applicant did not attend the hearing before the Appeals Committee and the Committee proceeded to dismiss the appeal and to uphold the decision by the Disciplinary Committee.</p> <p> </p> <p>[5]     The applicant appealed to the Labour Court under LC/B/37/2019 before MURASI J on the basis that the hearing committee had erred by not finding that he was wrongfully charged. The applicant further averred that the committee had erred in finding that he was in possession of documents whereas the documents, subject to the charge, had been loaded onto his computer following a breach of his password.</p> <p> </p> <p>[6]     The first respondent raised a point in <em>limine </em>to the effect that the appeal was improperly before the court as the applicant had not appeared before the two lower tribunals which tribunals had issued default judgments against him and as such these decisions could not be appealed against. The court proceeded to uphold the point in <em>limine</em> and struck the matter off the roll.</p> <p> </p> <p>[7]     The applicant then made an application for condonation of late filing of an application for review and extension of time within which to file an application for review. The court <em>a quo</em> dismissed the application. The court found that the applicant failed to give a reasonable explanation for the delay in making a valid application for review and that in any event he lacked prospects of success on review.</p> <p> </p> <p>[8]     The applicant subsequently sought for leave to appeal to this Court under LC/MT/48/20. The applicant argued that the court <em>a quo</em> had made material omissions in its findings and that its discretion had been based on wrong principles of law. He also attached his intended notice of appeal to the application. The court <em>a quo</em> dismissed the application on the basis that the applicant’s intended grounds of appeal did not raise questions of law as required by the Labour Court Rules. Undeterred by this dismissal the applicant launched this application.</p> <p> </p> <p> </p> <p><strong>APPLICANT’S SUBMISSIONS         </strong></p> <p>[9]     At the hearing, the applicant raised a point <em>in limine</em> to the effect that the first respondent’s opposing affidavit was fatally defective in that it had omitted to cite the case references. He also averred that the terminology in paragraph 27 of the first respondent’s notice of opposition was defective in as far as it stated “our prayer” which was an attempt by the first respondent to include persons who had had not appeared before the court <em>a quo</em>.</p> <p> </p> <p>[10]   On the merits, the applicant submitted that the court <em>a quo</em> misdirected itself by making findings of fact contrary to the evidence presented, particularly that his dismissal took place on 31 August 2018 when the actual dismissal date had been 31 July 2018. It was the applicant’s case that his dismissal on that date disregarded a valid sick note which was against Labour Laws and the court <em>a quo</em> had failed to consider same. Applicant further argued that the court <em>a quo</em> erred by failing to make a ruling on his application for rescission of judgment and by failing to decide the matter based on the evidence of the screenshot, emails and a forensic report.</p> <p> </p> <p><strong>RESPONDENT’S SUBMISSISSIONS</strong></p> <p>[11]   Counsel for the first respondent, Mr. <em>Maguchu</em>, opposed the preliminary points raised by the applicant and argued that the failure to list the reference case numbers on the notice of opposition does not render the notice of opposition defective as the first respondent had clearly cited the case number SCB 67/20. Counsel further argued that the reference to “our prayer” under paragraph 27 of the notice of opposition was erroneously made and in any event did not detract from the actual prayer sought. It was counsel’s argument that it was clear from the opposing affidavit that the second and third respondents were not active in the matter and that it was the first respondent which sought relief.</p> <p> </p> <p>[12]   Mr. <em>Maguchu</em>, also raised a preliminary point to the effect that the applicant’s intended notice of appeal was fatally defective as it did not cite the correct date when the judgment appealed against was handed down. Counsel further submitted that the relief sought by the applicant was defective.</p> <p> </p> <p> </p> <p>[13]   On the merits, it was counsel’s argument that the applicant clearly had a misunderstanding of what he sought to have impugned in the judgment of the court <em>a quo.</em> Counsel further argued that the court did not err in dismissing the applicant’s application as it had no prospects of success on appeal.</p> <p> </p> <p><strong>DETERMINATION OF PRELIMINARY POINTS </strong></p> <p>[14]      Both parties raised preliminary points. I will deal with the applicant’s preliminary objections first. The point raised by the applicant sought to impugn the first respondent’s opposing affidavit on the basis that it was fatally defective as it does not cite the reference cases in the matter and the prayer sought is stated as “our prayer” suggesting that it is for all the respondents. Rule 39 of the Supreme Court Rules, 2018 (‘the Rules’) provides for the procedure under which applications are made before this Court. In terms of r 39 (3) a respondent has a right to oppose to any application. Rule 39 (3) provides as follows:</p> <p>“The respondent shall have the right to file opposing affidavits within five days of receipt of the application in terms of this rule and, thereafter, the applicant shall have the right of filing answering affidavits within a further period of five days calculated from the date of receipt of the respondent's opposing affidavits.”</p> <p> </p> <p> </p> <p>In <em>casu</em>, the first respondent timeously filed its notice of opposition and the notice indicates the case number before this Court being SCB 67/20. I find nothing amiss with the notice of opposition as presented. There is no rule of this Court which requires that every affidavit must have a reference of corresponding cases. In fact the rule of practice is that any affidavit or pleading in a matter must show the case number under which it is made. The reason for this is obvious. The respondent must be responding to a particular case which has been brought to the court by the applicant. It enables the registrar to file the notice of opposition in the correct file. This is particularly important in matters such as this, where there has been protracted litigation between the parties with many cases being filed before the court. In my view, citation of case numbers is merely a management tool to avoid misfiling of cases. It could never have been the intention that the failure to cite reference files, which have come before the court, would lead to a notice of opposition being defective.</p> <p> </p> <p>[15]   It was also the applicant’s argument that the relief sought by the first respondent in its notice of opposition was defective as it refered to “our” suggesting that it was for all the respondents and not just the first respondent which had filed the opposition. It is not in dispute that the second and third respondents have not been actively involved in this matter. It thus follows that a reference to “our” in the respondent’s prayer suggests reference to it alone. All that the respondent sought was a dismissal of the application with costs on a legal practitioner and client scale. I am not persuaded that the prayer of the 1st respondent in the notice of opposition as framed, renders the opposing affidavit fatally defective. Even if the Court is to give an order for costs against the applicant such costs would be for the first respondent as it is the only respondent before this Court. The applicant’s preliminary points are thus devoid of merit and are accordingly dismissed.</p> <p> </p> <p>[16]   With regards to the first respondent’s point <em>in limine</em>, it was submitted by counsel for the first respondent that the appellant’s notice of appeal is fatally defective as it does not identify the correct date when the judgment appealed against was handed down and that it has an incompetent relief sought in the prayer. It was the first respondent’s submission that on filing an application for leave to appeal the applicant must attach a notice of appeal that complies with the rules.  The applicant opposed the point raised by the first respondent and argued that the correct date when the judgment was handed down was 13 March 2019. The applicant did not however amend the notice of appeal which is before me.</p> <p> </p> <p>[17]   Rule 59 (3) of the Supreme Court Rules provides what should be included in a notice of appeal. The rule states as follows:</p> <p>“The notice of appeal shall state –</p> <ol> <li>The date on which the decision was given;</li> <li> </li> <li> </li> <li>The exact nature of the relief sought;</li> <li>……..</li> </ol> <p>The provisions are mandatory. The applicant accepted that the date on his draft notice of appeal was incorrect. The applicant did not amend the date and as such the notice of appeal as is remains defective as it has an incorrect date.</p> <p>   </p> <p>[18]   It is trite that the draft notice of appeal placed before the Court in an application of this nature becomes the notice of appeal which forms the basis of the appeal to be heard by the Court. It is thus imperative that the draft notice of appeal must comply with the rules of the court. The applicant’s notice of appeal is thus defective in this regard.</p> <p> </p> <p>[19]   The applicant’s draft notice of appeal is also rendered defective by the relief sought on appeal by the applicant. The applicant’s amended notice of appeal has the following relief sought on appeal:</p> <p>“<strong>WHEREFORE</strong> the appellant prays for an order that:</p> <ol> <li>The appeal is allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and is substituted with the following order:</li> </ol> <p><strong><em>“The application is allowed with costs”</em></strong></p> <p> </p> <p>AND IT IS ORDERED THAT:</p> <p> </p> <p>PRAYER (1)</p> <p>Appellant to file notice or Review to Labour Court within ten (10) days; application to be heard before a different judge. (<em>sic</em>)</p> <p> </p> <p>PRAYER (2)</p> <p>Supreme Court to make such other order that the court considers speedy, equitable and inexpensive to meet justice of case.”</p> <p> </p> <p> </p> <p>It is apparent that the applicant wanted an order that the Court siting as an appeal court, grant him condonation and extension of time within which to file his review application.</p> <p> </p> <p>This is not what the applicant sought <em>in casu</em>. In <em>Mudyavanhu v Saruchera &amp; Others</em> SC 75/17 the Court stated the following:</p> <p>“Rule 29 (1) (e) is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.”</p> <p>See also <em>Sambaza v AL Shams Global BVI Limited</em> SC 3/18.</p> <p>The phrase ‘exact nature of the relief sought’ means that an appellant must inform the Court of the relief he/she wants. The Supreme Court’s mandate is to examine the correctness or otherwise of a decision of the lower court. In doing so the court is guided by the relief sought by the appellant. The need for the relief sought on appeal to be exact cannot be over emphasised.</p> <p> </p> <p>[20]   The applicant in<em> casu</em>, gives two prayers on appeal which are both incompetent. The first prayer is that this Court order that the applicant file his notice of review to the Labour Court within ten days and for the application to be heard before a different judge. If this Court finds for the applicant on appeal it will mean that he has a right of audience before the Labour Court to make a fresh application for review. The applicant will have to make a completely fresh application for review in terms of the rules of the Labour Court. He will have twenty-one days within which to make his application for review as per the dictates of r 20 (1) of the Labour Court Rules, 2017. As such the prayer sought under prayer (1) is untenable before this Court.</p> <p> </p> <p>[21]   The applicant’s alternative prayer is for the Supreme Court to make an order “as appear (<em>sic</em>) to it necessary in the justice of the case”.  The second prayer clearly fails to meet the threshold of the mandatory rule which provides that the exact nature of the relief sought must be given. It cannot be for this Court to draft a relief for the applicant, rather the applicant should inform the Court of the redress he seeks. The relief sought renders the notice of appeal fatally defective. The first respondent’s preliminary points thus have merit.</p> <p> </p> <p>[22]   I also find it necessary to highlight that the defect in the applicant’s application is further compounded by the fact that his grounds of appeal are not clear and concise and do not raise questions of law. A reading of the applicant’s eight grounds of appeal shows that they are difficult to comprehend and attack the factual issues surrounding the applicant’s matter. What was before the court <em>a quo</em> was an application for condonation and extension of time within which to file an application for review. The applicant’s grounds of appeal should challenge the court <em>a quo’s</em> findings on the application. The applicant’s grounds as they are clearly do not do so.</p> <p> </p> <p>[23]   Rule 44(1) of the Rules provides that grounds of appeal must be clear and concise. In <em>Chikura N.O &amp; Anor v Al Sham’s Global BVI Limited </em>SC 17/17 the Court remarked that:</p> <p>“It is not for the Court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of ‘grounds of appeal’ in order to determine the real issues for determination by the Court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal.  That is not so in the instant matter.  The grounds of appeal are multiple, attack every line of reasoning of the learned judge and do not clearly and concisely define the issues which are to be determined by this Court.”</p> <p> </p> <p>The Court must not be left to guess what the appellant is challenging exactly from the decision of the court <em>a quo.</em></p> <p>  </p> <p>[24]   The applicant must also ensure that his grounds of appeal raise questions of law. Section 92F(1) of the Labour Act [<em>Chapter 28:01</em>] provides that an appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court. The applicant in making an appeal must not only allege, but also show, that the Labour Court misdirected itself on a point of law. Mere regurgitation of facts, as has been done by the applicant in his draft notice of appeal, will render the grounds of appeal defective.</p> <p> </p> <p>[25]   In respect to costs the first respondent sought costs in the event that it was successful. I find no basis to deny the first respondent its costs as prayed.</p> <p> </p> <p>[26]   In the result, the matter is struck off the roll with costs.</p> <p>                                          </p> <p><em>Calderwood, Bryce Hendrie &amp; Partners</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/11/2021-zwsc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29555">2021-zwsc-11.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/11/2021-zwsc-11.pdf" type="application/pdf; length=584118">2021-zwsc-11.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/leave-appeal">Leave to appeal</a></li></ul></span> Thu, 03 Jun 2021 10:27:08 +0000 Sandra 10018 at https://old.zimlii.org S v Chiwandika (HH 5-21, B 1073/20 Ref MUT R198/15 Ref CA 1109/15) [2021] ZWHHC 5 (05 January 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/5 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>EDWARD CHIWANDIKA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 5 January, 2021</p> <p> </p> <p> </p> <p><strong>Bail Pending appeal</strong></p> <p> </p> <p> </p> <p>Applicant in person</p> <p><em>D.H Chesa, </em>for the respondent</p> <p> </p> <p> </p> <p>            CHITAPI J: The applicant applies for bail pending appeal number CA 1109/15. The applicant was convicted of the offence of rape as defined in s 65 of the Criminal Law (Codification &amp; Reform) Act. [<em>Chapter 9:23</em>] by the regional magistrate sitting at Mutare on 17 December, 2015. The applicant was on account of the conviction sentenced to 20 years imprisonment. Through his legal practitioners the applicant noted an appeal against both conviction and sentence on 31 December, 2015. The allegation against the applicant was that he was employed as the Deputy Headmaster at the school where the complainant, a 12 year old pupil was attending grade 6. The applicant was then aged 56 years old. It was alleged that on 30 October, 2015 the applicant lured the complainant into the storeroom at the school where she was a pupil and the applicant was the Deputy Headmaster, to arrange books thrown around by her classmates. The applicant allegedly entered the storeroom, locked it from inside and raped the complainant after closing her mouth with one hand and using the other hand to forcibly remove complainant pant and unzipping his trousers before forcing his manhood into the complainant’s private part. The complainant as it was alleged did not consent to the sexual act.</p> <p>            It was alleged further that after raping the complainant, the applicant zipped his fly, placed some biscuits into the complainant’s satchel and warned the complainant not to disclose the incident to anyone. The applicant unlocked the storeroom door and went into the classroom. The complainant left the storeroom crying. She subsequently reported the ordeal to her class teacher during break time. The class teacher in turn led the complainant to two other lady teachers before the complainant was then referred to Mutare General Hospital for medical examination where the complainant was examined on 1 November 2015.</p> <p>            The applicant filed a defence outline through his legal counsel. The applicant therein denied any sexual encounter with the complainant. He outlined that he did not meet the complainant at all on 30 October, 2015. He averred that the alleged rape allegation was nothing but a made up story and a fabrication by some teachers and other individual whom the applicant did not name because of personal grudges, again whose nature and content the applicant did not outline. The applicant again outlined that he was a strict disciplinarian in respect of both pupils and teachers and that there was a plot to influence that he should be transferred from the school, hence the false allegations which were “activated by malice and falsehoods.” In summary therefore, the applicant’s defence was that he did not commit the offence in question and that the allegations were made up by fellow teachers and other individuals who wanted him out of the way because he was a strict administrator as deputy headmaster.</p> <p>            The State led evidence from the complainant, from the complainant’s classmate, Nomatter Gwenzi, complainant’s class teacher to whom complainant made a report, and a nurse who compiled the medical report after examining the complainant for possible sexual assault. The learned magistrate was impressed by the evidence of State witnesses and their demeanour. As regards the applicant, the learned magistrate correctly determined that the applicant proffered a bare denial of the allegations. On reading the record of proceedings, it is also clear that the applicant simply denied all evidence of his being the perpetrator although he agreed that the complainant was crying and he asked some teachers to investigate why the complainant was crying. He admitted that the medial evidence showed that the complainant was sexually abused. The learned magistrate correctly determined that the fact that the complainant was sexually abused was a given and that the issue for determination was to identify the abuser or culprit.</p> <p>            The learned magistrate meticulously considered the evidence against the applicant and commented on the witness evidence. The learned magistrate determined that the complainant’s narration of how she was raped by the applicant was very clear and was corroborated by complainant’s classmate who narrated that the applicant called the complainant to the classroom where the storeroom was situate. The classmate also testified to seeing the complainant crying as she came out of the classroom where she had been with the applicant. The complainant’ class teacher testified to seeing the complainant crying during break time and upon enquiry as to the reason for crying, the complainant reported that the applicant had raped her. The matter was reported to the police after the complainant had been examined at the local clinic.  The local nurse who examined the complainant gave evidence too and explained her report and findings. It was common cause that sexual penetration of the complainant’s private parts was not in dispute. The evidence thereon was conclusive as the medical report indicated that the complainant’s hymen was stretched with recent bruising of the vulva observed and noted.</p> <p>            The accused did not develop the false incrimination motive any further and as the learned magistrate noted, the applicant’s defence was a bare denial. I considered the applicant’s evidence in depth. It is noted that the applicant did not deny having interacted with the complainant on the fateful day. He however denied ever being with the complainant in private. The applicant admitted that he tasked the complainant to collect some books left scattered in the class room. He testified that he entered the storeroom to collect his food. As he entered the storeroom, the complainant was leaving the same storeroom. He then proceeded to eat his food as he inspected his registers. The applicant testified that at all times relevant, the complainant was in the company of another pupil Reason Gumbochuma. The applicant did not mention the fact of the presence of Reason Gumbochuma  in his defence outline. Reason Gumbochuma did not testify and the applicant did not call her as a defence witness. Applicant testified that he was surprised to see people gathered at his brother’s (a fellow teacher) house within the school area. Police subsequently came and arrested him. The applicant also alleged an entrapment which he said had been contrived in the evening of 30 October, 2015.</p> <p>            The applicant did not give flesh to the allegations of entrapment. The probabilities did not support his denial of the commission of the offence. The motive for false incrimination was not established save for a bare assertion that there was a ploy to have him transferred by staff members and other individuals dissatisfied with the applicant’s strictness on them. Again no details of the strictness nor details of people who desired the applicant’s ouster from the school were given. It was not shown as to why those who schemed for the applicant’s ouster chose the complainant as the bait. Even if one were to accept that the complainant was used a bait, this does not explain how medically, evidence of recent sexual intercourse was noted. It meant that the plot would have been deeper to include the sexual abuse of the complainant and passing off the applicant as the abuser. The learned magistrate correctly and justificably on the evidence found that it was improbable that the complainant would shield the actual perpetrator and pick on the applicant as the rapist. The applicant’s prospects of success are next to non-existent.</p> <p>            The grounds of appeal in the notice of appeal are generalized and the applicant is warned to revisit the notice of appeal to avoid it being struck out as invalid. The applicant advised in the grounds of appeal that the learned magistrate erred “on points of law and facts” in deciding without explanation that the complainant was raped whilst in a standing position.” It is not clear as to what misdirection of law is alleged whilst the attack on the factual findings is also a bare attack and does not state how such a finding could not be sustained. The applicant also averred that the learned magistrate was misdirected on the facts to find that it was possible for the applicant to commit the rape at break time. It was also alleged in the grounds of appeal that the learned magistrate erred in law in failing to determine allegations of bad blood between the applicant and other staff members. As already discussed, the applicant did not give details of the alleged feud and in the absence of such evidence, there was nothing for the learned magistrate to interrogate and determine on the alleged issue. The same applies to the ground that the learned magistrate erred in fact in not interrogating the defence that other staff members and were making false reports to incite villagers to demonstrate against the applicant. The learned magistrate could not be expected to create evidence and then make findings on such evidence. The applicant did not lead such evidence. There was nothing for the learned magistrate to decide in this regard.</p> <p>            In regard to sentence appellant averred that the sentence of 20 years without suspending a portion was unduly harsh and induced a sense of shock. The applicant proposed a sentence of 18 years imprisonment with 3 years suspended on conditions of future good behaviour. In this respect,  I consider that the appeal against sentence has prospects of success. It is salutary to suspend a portion of a sentence imposed upon a first offender. The fact that the applicant exercised <em>loco parentis</em> on the complainant was not on its own sufficient in my view to disqualify the applicant from being accorded the benefit of a partial suspension of the sentence. My view is that this aggravatory factor would affect the length of the suspended portion rather than render a suspension of a portion of the sentence undesirable. The applicant has suggested an effective sentence of 15 years imprisonment. The applicant therefore accepts that a substantially long sentence of imprisonment is warranted. The applicant has only served 5 years and still has a substantial portion to serve. Bail should therefore not be granted under such circumstances.</p> <p>            I need to mention a commendation to the state counsel, Mr <em>Mavuto</em> for how he agreed that the applicant’s application for reinstatement of appeal should be disposed of at the same time as the bail application. What happened was that it was noted upon perusal of the appeal court record which I requested it be placed before me that the applicant appeal had been dismissed for want of prosecution. The applicant averred that he was not advised of the dismissal. I then advised of the dismissal. I further advised the applicant on the need to apply for reinstatement of appeal first. Mr <em>Mavuto</em> was comfortable to deal with the application when made, since he had read the record and filed a response to the bail pending appeal whilst oblivious to the fact of the dismissal of the appeal. It was on my part also convenient that I deal with the reinstatement application as l had also gone through the record. The applicant then filed his application for reinstatement of appeal and it was granted. This opened the door to deal with the bail application now disposed of by this judgment. I take the view that in justice dispensation, unless it would result in prejudice to the state and the applicant, the judge should consider bringing matters to finality than simply take the ease way out to strike out applications for bail which is a liberty issue because a reinstatement of appeal or condonation for late noting of appeal is pending determination. It is I think desirable to call for the reinstatement or condonation record and deal with it since considerations of prospects of success dovetail.</p> <p>Reverting to this application substantively, it is dismissed for reasons given.</p> <p> </p> <p><em>National Prosecuting Authority, </em>respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/5/2021-zwhhc-5.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20967">2021-zwhhc-5.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/5/2021-zwhhc-5.pdf" type="application/pdf; length=334007">2021-zwhhc-5.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-pending-trial">Bail pending trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape">Rape</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 24 Mar 2021 14:15:23 +0000 Sandra 9980 at https://old.zimlii.org S v Yemurai (HH 60-21, B79/21) [2021] ZWHHC 60 (16 February 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/60 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>TRYMORE YEMURAI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 5 February 2021 and 16 February 2021</p> <p> </p> <p><strong>Appeal against refusal to grant bail by the magistrate</strong></p> <p> </p> <p><em>J Gusha</em>, for the appellant</p> <p><em>R Chikosha</em>, for the respondent</p> <p> </p> <p>           </p> <p>CHITAPI J: The appellant as accused No. 5 appeared before the provincial magistrate with four alleged accomplices on 30 October, 2020 facing a charge of robbery as defined in s 126 of the Criminal Law (Codification &amp; Reform) Act [<em>Chapter 9:23</em>]. The quintet was placed on remand following which they applied for bail pending trial which was denied by the said provincial magistrate. The appellant filed an appeal against the provincial magistrate’s decision to deny him bail on 13 January 2021. On 15 January 2021, the appeal was set down before FOROMA J whom postponed the matter to 19 January 2020 at the request of State counsel who required time to prepare and file the respondent’s response. On 19 January 2021, the hearing was further postponed to 22 January 2021 as the respondent’s response was still not filed. The hearing was further postponed to 28 January 2021 and then to 4 February 2021. The respondent’s response by Mr <em>Chikosha</em> was finally filed on 21 January 2021. He was however only available to argue the matter on 4 February 2021 due to COVID-19 challenges as the National Prosecuting Authority  placed its officers in groups for purpose of providing limited service to ensure a non-shutdown of the office.</p> <p>In the response Mr <em>Chikosha </em>opposed the appeal. I should record that on 18 January 2021, the respondent filed a response prepared by Miss <em>Kunaka</em> in which she conceded the merits of the appeal and had consented to bail being granted. The response aforesaid was on 19 January 2021 withdrawn by Mr <em>Chikosha</em> who proceeded to then file his response in place thereof on 21 January 2021.</p> <p>The background facts to this matter were that the appellant and his accomplices were charged for robbery on allegations that the five of them went to Equity House at Corner Jason Moyo and Rezende Street where they proceeded to the complainant’s office. They pretended to be genuine customers who intended to sell gold to the complainant. It was not stated whether or not the complainant was legally entitled to deal in gold. That consideration aside, the charge alleged that the appellant and his accomplices then threatened the complainant with violence whilst armed with an electric shocker which they used to induce fear and submission of the complainant to relinquish his property. The quintet allegedly manhandled the complainant, tied his hands and legs and zipped his mouth with a cello tape. I must remark that on these allegations the robbery was committed in movie style. The quintet then forcibly took the safe keys from the complainant and opened the safe. They stole from the safe US$2 215.00. Besides the cash, they stole the complainant’s oppo cell phone and another cell phone belonging to one Freddy Karimupfumbi who had left it on charge in the complainant’s office.</p> <p>The further allegations were that the complainant managed to quickly set himself free and shouted for help. The complainant gave chase of the quintet and managed to apprehend one David Farai Hausi within the building. David Farai Hausi appeared before the magistrate as accused 1. Accused 2 and 3, namely Tawanda Nyemba and Richard Aloishes Miller were apprehended by members of the public outside Equity House. One accused George Moyo was alleged to have escaped. The inclusion of George Moyo would mean that contrary to the allegations in the charge sheet which refers to the robbery as having been committed by a quintet, the robbery was committed by sextet. It was alleged that upon their arrest, the three apprehended accused 1, 2 and 3 who then implicated the 4th accused and 5th accused being Michael Kamusoko and the appellant. The same three accused persons were alleged to have further implicated George Moyo and one, Gunners (no further particulars) and Maphosa (no further particulars). It alleged that property worth US$1800.00 was recovered out of stolen property worth US$2395.00. Other than the oppo cell phone recovered from accused 2, Tawanda Nyemba, no detail was stated as to what further property was recovered and from him. It was also stated in the allegations that the appellant was arrested at his house No. 7685 Kuwadzana 3 without resistance.</p> <p>The provincial magistrate denied the appellant bail as well as the other four accused persons. In her ruling the provincial magistrate was not explicit on the ground which she relied upon to make a finding that it was not in the interests of justice to deny the appellant bail. She simply stated that the appellant and his accomplices had not outlined their defences to assist the court to gauge the strength of the State case. She accepted that the evidence against the appellant and Michael Kamusoko was in the nature of implication by accused 1, 2 and 3. The provincial magistrate then stated that the 4th accused and the appellant “initially managed to escape from the scene.” She accepted that there had been no identification parade carried out to implicate accused 4 and the appellant. The provincial magistrate stated as follows in regard to the 4th accused and the appellant in her judgment:</p> <p>“The counsel for 4th and 5th spoke of the I.D. parade but the 3’s defences are not expressly mentioned save to say they have nothing to do with the alleged offence.”</p> <p> </p> <p>            The provincial magistrate then concluded her judgment as follows:</p> <p>“The State has succeeded in proving compelling reasons such as the danger that the accused persons may pursue members of the public if released. Also, search have not yet been made in full.</p> <p>The court is of the view that the 5 are not suitable candidates for bail.”</p> <p> </p> <p>In this appeal, the appellant listed the following grounds of appeal</p> <p> </p> <ol> <li>The court <em>a quo</em> erred at law in refusing the appellant bail on the basis that there were compelling reasons when in fact there was no such reason.</li> <li>The court a quo erred at law in refusing bail to the appellant on the basis that he posed a danger to member of the public whom he may pursue if released on bail.</li> <li>The magistrate erred by not considering the defence or explanation raised by the appellant. There is not nexus whatsoever between the appellant and the offence in question.</li> </ol> <p>In the respondent’s response, Mr <em>Chikosha </em>correctly submitted that on appeal, the decision of the magistrate can only be interfered with where it is shown that the magistrate committed an irregularity or a misdirection in reaching the decision appealed against. Counsel submitted that in case No B 2060/20 the4th accused was denied bail by CHIRAWU-MUGOMBA J and that the circumstances of the 4th accused and the appellant were similar. The 4th accused indeed had the appeal dismissed on 5 January 2021. The only endorsement on the result slip reads as follows:</p> <p>“Compelling reasons to deny bail existed so no misdirection. Appellant implicated – evidence not seriously challenged.”</p> <p> </p> <p>            The learned judge did not prepared a fully clothed judgment. It is not possible for me to appreciate the nature and detail of the compelling reasons referred to by the learned judge. The evidence of implication referred to was not outlined. I am therefore not in a position to rubber stamp Mr <em>Chikosha</em>’s submission that the circumstances of the 4th accused as prescribed in his appeal in case No. B 2060/20 were the same as for the appellant herein. For those reasons of paucity of information on the reasons for judgment, I cannot be persuaded to be guided by the decision in case no. B2060/20. The decision is therefore to be taken as having been informed by the peculiar considerations which the learned Judge considered.</p> <p>Other than the above, Mr<em> Chikosha</em> did not make any other meaningful submissions to support the provincial magistrates’ decision. He submitted that the appellant did not outline the nature of his defence. However, he did because he stated that he knew nothing about the commission of the offence. Such a statement amounts to challenging the state to prove both the <em>actus reus</em> by the appellant accompanied by the necessary <em>mens rea</em>. The critical issue was for the provincial magistrate to consider the veracity of the allegations made against the appellant first before considering the applicant’s defence where he or she has proferred one. The accused may not even plead a defence where there is no evidence to link him to the commission of the offence. The provincial magistrate relied on the case of <em>S </em>v <em>Ruturi</em> HH 26/2003, a decision by MAKARAU J (as she then was) in an appeal against the refusal by the magistrate to grant appellant bail in a fraud case. The learned Judge commented that the appellants’ failure to plead his defence at the time of arrest and at his remand hearing made the state case appear strong. The provincial magistrate also relied on this decision to make an adverse finding that the appellant was not a suitable candidate for the grant of bail.</p> <p>It is my considered view that the both Mr<em> Chikosha</em> and the learned provincial magistrate misapplied the dicta in the <em>Ruture</em> case. In that case there was cogent evidence against the appellant which without being answered became strongly suggestive of the appellants’ guilty. Therefore the <em>dicta i</em>n the <em>Ruturi </em>case that the accused is expected to give an outline of his defence must apply where there is cogent evidence alleged by the State as require to be answered. <em>In casu</em>, there was no cogent evidence against the appellant which was alleged by the State. I say so because other than being implicated by the co-accused, there was no cogent and admissible evidence alleged by the state to link the appellant to the offence. In the course of argument, Mr<em> Chikosha</em> persisted in his submission that there was cogent evidence against the appellant in the form of implication by the appellant’s co-accused. I paused the question how such evidence would be adduced at trial since the accomplices would be accused persons in the dock and there would be no evidence against the appellant at the close of the State case. Mr <em>Chikosha</em> had no answer to the question posed and rather than simply acknowledge and concede that there was no cogent evidence against the appellant he submitted that he could not concede to the appeal. It is not expected of counsel to cling to a unsupportable position because justice is all about impartiality and in this regard, the prosecution is constitutionally mandated to act without fear, favour or bias in the discharge of prosecuting functions.</p> <p>I also consider it necessary to make further comment on the judgment in <em>Ruturi</em>’s case. It must be appreciated that the well written judgment is a 2003 judgment. There have however been developments in our jurisprudence. There is presently a new constitution passed in 2013 which provides for the right of arrested and detained persons to remain silent. Section 50 (4) (a) of the constitution provides for this right and it is extended to “any person who is arrested or detained for an alleged offence”. Section 70 (1) (i) of the constitution provides that “any person accused of an offence has the following rights – (1) to remain silent and not to testify or be compelled to give self-incriminating evidence.” The dicta in the <em>Ruturi</em> case on the need for the accused to give an outline of his defence failing which an inference of a strong case against the accused may be assumed is arguably unconstitutional because the accused is compelled to trade in his right to remain silent for a favourable finding on the accused’s suitability to be granted bail. <em>In casu</em> the provincial magistrate misdirected herself in law by basing her refusal to grant bail on the apparent failure by the appellant to outline his defence.</p> <p>A startling finding by the provincial magistrate was the finding attached by the appellant in the second ground of appeal that the appellant would if release on bail pursue members of the public. It was a finding which came from the blue as it was not an issue in the hearing before the magistrate. The judgment of MAKARAU J (as she then was) in <em>Taruwona &amp; anor </em>v<em> State</em> HH 6/05 which was quoted by the appellants’ counsel comes to the fore where the learned Judge stated, </p> <p>“It is trite in my view that when a judicial officer decides on an application, he or she must at least refer to that legal principle upon which the decision is based in addition to the facts upon which the legal principle is applied. In the above ruling by the trial magistrate no legal principle is referred to and the evidence that he claims to have looked at thoroughly is not referred to. It is the lack of these basic features in the ruling by the magistrate that in my view constitute the misdirection on his part...”</p> <p>            The above dicta applies with equal force in this appeal. The provincial magistrates’ judgement shows that she directed herself to the promiscuous of s 117 (2) of the Criminal Procedure &amp; Evidence Act which list the four grounds which if established will justify the denial of bail in the interests of justice. The provincial magistrate only paid up service to the factors aforesaid. Had she been properly directed, she would have realized that the factors which must be taken into account in establishing each of those grounds are set out in s 117 (3). The finding that the appellant would pursue members of the public was not based on any facts or evidence place before the provincial magistrate.</p> <p>            In consequence of the gross misdirections committed by the provincial magistrate, I am at large to exercise a fresh discretion on the matter. Having considered the facts and circumstances of the case, the lack of cogent evidence of the link between the appellant and the commission of the offence, and inter-alia that he has a fixed abode and did not evince any intention to abscond, there are no compelling reasons to deny the appellant bail.</p> <p>            Accordingly the following order is made:</p> <p>            The decision of the magistrate to deny the appellant bail in case no. CRB HREP 9930/20 made on 30 October, 2020 is hereby set aside and substituted with the following order:</p> <ol> <li>The accused is admitted to bail pending trial in case no. HRE P 9930/20.</li> <li>The accused shall deposit $5000.00 with the Clerk of Harare Magistrates Court.</li> <li>The accused shall reside at House no. 7685 Kuwadzana 3, Harare until the matter is finalized.</li> <li>  The accused shall report at Kuwadzana Police Station every Fridays between 0600-1800 hours.</li> <li>The accused shall not interfere with witnesses and investigations. </li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Gurira &amp; Associates,</em> applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/60/2021-zwhhc-60.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23136">2021-zwhhc-60.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/60/2021-zwhhc-60.pdf" type="application/pdf; length=338936">2021-zwhhc-60.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/robbery">Robbery</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2003/26">S v Ruturi ( HH 26-2003) [2003] ZWHHC 26 (11 May 2003);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 18 Mar 2021 11:19:10 +0000 Sandra 9975 at https://old.zimlii.org Alpha Media Holdings (Private) Limited t/a The Southern eye & 2 Ors v Muhlwa (SC 110-20, Civil Appeal No.SC 288/19) [2020] ZWSC 110 (23 July 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/110 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                               </p> <p><strong>DISTRIBUTABLE</strong><strong>   (102)</strong></p> <p> </p> <p><strong>Civil Appeal – <em>Ex tempore</em></strong></p> <p>                                                           </p> <ol> <li><strong>    ALPHA      MEDIA      HOLDINGS      (PRIVATE)     LIMITED     t/a     THE     SOUTHERN     EYE     (2)     KHOLWANI      NYATHI     (3)     THANDIWE     MOYO</strong></li> </ol> <p><strong>v</strong></p> <p><strong>ROGER     MUHLWA</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPEME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, UCHENA JA &amp; CHITAKUNYE AJA</strong></p> <p><strong>BULAWAYO: 22 &amp; 23 JULY 2020 </strong></p> <p> </p> <p> </p> <p> </p> <p><em>S. Siziba</em>, for the Appellants</p> <p><em>J. Tshuma</em>, for the Respondent          </p> <p> </p> <p> </p> <p><strong>UCHENA JA:           </strong>This is an appeal against the judgment of the High Court handed down on 9 May 2019 which awarded defamation damages to the respondent in the sum of US$16 000,00.</p> <p> </p> <p> </p> <p>On 21 January 2015 the third appellant, an employee of the first appellant wrote a story published in the Southern Eye in which she stated <em>inter alia</em>:</p> <p>“We had the likes of Lazarus Sibanda who admitted taking money from the club, Luke Mkandla who ran the club down into insolvency, Roger Muhlwa who was suspended when he misappropriated funds.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>Roger Muhlwa is the respondent in this case.  He was appalled by the defamatory story and sued the appellants in the court <em>a quo. </em>The court upheld his claim for defamation and awarded him damages in the sum of USD16 000,00. This award was against the first and third appellants, the court <em>a quo</em> having exonerated the second respondent of any wrongdoing.</p> <p> </p> <p> </p> <p>The appellants did not dispute that they published the story through their paper (the Southern Eye).  Nor do they dispute that the statement in question was defamatory of the respondent.  The third appellant who wrote the article in question told the court <em>a quo</em> that she wrote it in error.  Further, that when she realised the error she consulted the Acting Editor resulting in their retracting the story in their publication of  23 January 2015.  It is not in dispute that they placed the retraction at the end of another article, where it reads as follows:</p> <p>“Meanwhile in Wednesday’s edition we erroneously stated that Roger Muhlwa was suspended for misappropriation of funds.  It has since been confirmed that he was a chairman of the executive where treasurer Lazarus Sibanda misappropriated $1 700 and that he and Peter Dube suspended the treasurer. We unreservedly apologise to Muhlwa for the error.”</p> <p> </p> <p> </p> <p> </p> <p>In their plea the appellants stated as follows;</p> <p>“The defendants, while admitting the publication herein and as alleged, aver that the contents of the publication were patently erroneous and based on incorrect information and that as soon as the error was discovered, a full retraction and apology was proffered to the plaintiff through the same publication.  They deny however that such publication was either malicious or calculated to defame plaintiff in his character, dignity and integrity.</p> <p>Further the defendants aver that in playing the role that they did in the publication, they were carrying out their constitutional duty to inform members of the public who had a right to such information and at no time did they entertain any intention to injure the good name and reputation of the plaintiff or were malicious in so acting.”</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>In its judgment the court <em>a quo</em> commenting on the appellant’s defence stated;</p> <p>“I must state from the outset that it appears to me that the defendants’ plea as shown above is somewhat self-contradicting. In my view the defendants cannot claim that the publication was erroneously made and based on incorrect information yet at the same time to have been carrying out their constitutional duty to inform members of the public who have a right to such information.  In my view once it is admitted that the publication was in error and based on incorrect information, then it cannot honestly and reasonably be argued that members of the public have a right to such erroneous and incorrect information.”</p> <p> </p> <p> </p> <p> </p> <p>We agree that members of the public have a right to receive information. However such information should not be erroneous or incorrect. In as much as the Constitution provides for freedom of expression and freedom of the media, the exercise of such freedom does not entitle the media to infringe other people’s constitutional and other rights. We are of the view that it is an abuse of journalistic privilege to publish incorrect and unverified information.  It is in fact unprofessional conduct to publish a story without first verifying it.  One is expected to verify the story with the person mentioned and the institution alleged to have been affected.  It is common cause that the third appellant did not verify the story before publication of the article, as she, in the retraction published on 23 January 2015, clearly states that it had “since been confirmed” that it was not the respondent, but the treasurer, who had misappropriated the funds in question. The appellants were therefore reckless in publishing the defamatory story before verification. Such recklessness in our view points to an intention to defame. This position is confirmed in the case of <em>Suid-Africaanse Uitsaaikorpraisie v O’Malley 1977 (3) SA 394 (AD) at 406 G-H</em> where it was stated as follows;</p> <p>“The use of defamatory language about a person is <em>prima facie</em> evidence of <em>animus injuriande. </em>The <em>onus</em> is then upon the defendant to establish some lawful justification or excuse for the defamatory language used. But it is not enough for him to show that he did not intend to do wrong for it is a principle of our law which applies as well to libel and slander as to other wrongs that if a man acts recklessly not heeding whether he will or will not injure another he cannot be heard to say he did not intend to hurt another.”</p> <p>The appellants put emphasis on their having voluntarily retracted the defamatory statement on 23 January 2015.  This must however be considered together with the respondent’s evidence that on 22 January 2015 he went to the appellants’ offices and asked to speak to the editor.  As the editor was not at the premises he asked to speak to the reporter.  He was also told that she was not present.  He left a message for the editor or the reporter to the effect that he had come to complain about the article they wrote about him on 21 January 2015. </p> <p> </p> <p> </p> <p>This in our view destroys the alleged voluntary retraction, which must have been triggered by the respondent’s visit and complaint.</p> <p> </p> <p>Commenting on the third appellant’s evidence the court <em>a quo</em> stated as follows;</p> <p>“Surely if she had made an error this is the kind of error she could not have missed in proof reading.  It plainly appears she published the story without verifying the facts with the plaintiff or someone at Highlanders who would have been expected to know the correct facts.  Her evidence that she erroneously listed him under those who had misappropriated funds cannot be believed.  It is an attempt to escape liability.”</p> <p> </p> <p> </p> <p> </p> <p>We find no fault in the court <em>a quo’s</em> assessment of the third appellant’s evidence. In any case, in his submissions before us, counsel for the appellant abandoned the defence of mistake\error and instead concentrated on lack of malicious intent, which we have already dealt with above.</p> <p> </p> <p>We are also satisfied that the court <em>a quo </em>properly exercised its discretion in assessing the <em>quantum</em> of damages.  Having analysed the law and the authorities cited on behalf of the parties, we hold the view that no case has been made for interference by this court, with the court <em>a quo’s</em> discretion in assessing the damages awarded.</p> <p> </p> <p> </p> <p>The appeal has no merit and ought to be dismissed. Costs will follow the cause.</p> <p> </p> <p>      It is accordingly ordered as follows;</p> <p>The appeal be and is hereby dismissed with costs.</p> <p> </p> <p><strong>GWAUNZA DCJ</strong>                                     I agree</p> <p> </p> <p><strong>CHITAKUNYE AJA    </strong>                           I agree</p> <p><em>Masiye-Moyo &amp; Associates (Inc Hwalima Moyo &amp; Associates),</em> appellants’ legal practitioners</p> <p> </p> <p><em>Webb, Low &amp; Barry (Inc Ben Baron &amp; Partners),</em> respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/110/2020-zwsc-110.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27137">2020-zwsc-110.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/110/2020-zwsc-110.pdf" type="application/pdf; length=322946">2020-zwsc-110.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/d">D</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/defamation">DEFAMATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/damages-defamation">Damages (DEFAMATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/defamatory-nature-words-used">Defamatory nature of words used</a></li></ul></span> Thu, 07 Jan 2021 10:09:40 +0000 Sandra 9965 at https://old.zimlii.org S v Walusa (HH 677-20, CA 250/18) [2020] ZWHHC 677 (02 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/677 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>BRIAN WALUSA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA &amp; CHIKOWERO JJ</p> <p>HARARE, 12 October &amp; 2 November 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p><em>Pesanai</em>, for the appellant</p> <p><em>Nyahunzvi</em>, for the respondent</p> <p> </p> <p> </p> <p>            MUZOFA J: The appellant was convicted after a trial by a magistrate sitting at the Mutoko Magistrates Court on four counts of contravening s 60 A (3) (a) of the Electricity Act [<em>Chapter 13:19</em>]. He appeared in court with two co accused persons. The first accused was acquitted, the second and third accused persons were convicted. The appellant was the second accused person. All counts were treated as one for purposes of sentence. Each of them was sentenced to 11 years imprisonment of which 1-year imprisonment was suspended on condition of restitution. The court also ordered   the return of the transformer oil to ZESA and all the tools used in the commission of the offence were forfeited to the State. He appeals against both conviction and sentence.</p> <p>             On 22 July 2017 one Silver Nyakusengwa “Silver” a caretaker at Kotwa High School woke up early around 4 a.m. He went outside his house. He heard some sounds by the transformer and subsequently someone jumping over the gate. He raised alarm with the guards. He then left for Marondera. The police were called and 6 containers were found near the transformer. Five of the containers were full of transformer oil and one was a quarter full. The containers were inscribed some initials TN, TMT and Kings. Police investigations revealed that the containers were in the custody of William Katsande ‘William’, the first accused before the trial court. William advised the police that he had given the containers to the appellant and the third accused. These two used to supply him with diesel. He occasionally provided them with containers for use to supply him with diesel. This is how the appellant was arrested. The appellant and the third accused later made indications of the other three places where they drained transformer oil.</p> <p>            The appellant denied the offences. His defence was a bare denial, no details were given. However, in cross examining the State witnesses, he challenged the indications and the statements he allegedly made. He said the indications were not made freely and voluntarily.</p> <p>            In its judgment the trial court acquitted the first accused on the basis that the evidence established that he supplied the other two accused persons with containers. The provision of the containers was for the supply of diesel not transformer oil. In respect of the appellant and the co-accused the trial court relied on the indications and the containers recovered from one of the scenes of crime. It ruled that the indications were freely and voluntarily made.</p> <p>            The appellant’s grounds of appeal against conviction raise two issues. Firstly, that the trial court misdirected itself in convicting the appellant on circumstantial evidence which did not give rise to the one inference that the appellant committed the offence. Secondly, that the trial court erred by accepting that the challenged indications and photographs were admissible in evidence.</p> <p>            In respect of sentence, that the court failed to explain in detail the meaning of special circumstances. In addition, it was alleged that the court should have found special circumstances in this matter.</p> <p>            The admissibility of indications and statements made by an accused is regulated by s 256 of the Criminal Procedure &amp; Evidence Act [<em>Chapter 9:07</em>]</p> <p>“1)       Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the prosecutor, whether such confession or statement was made before or after his arrest or after committal and whether reduced into writing or not...”</p> <p> </p> <p>A statement made by an accused includes an oral or written statement and indications. The section requires that there must be proof that the statements that the State wishes to rely on was made freely and voluntarily. In the case of an unconfirmed statement, the only way to establish the admissibility of a statement in criminal proceedings is through a trial within a trial. It is in that process that the Magistrate then makes a ruling after hearing all the evidence relating to the making of the statements. It is a gross irregularity for a Magistrate to make a finding on the statement without resorting to a trial within a trial. See <em>S </em>v<em>Mazano and Another </em>2000 (1) ZLR 347(HC).  </p> <p>            During the trial, the appellant told the court that he made the indications under duress. More specifically, he said he was assaulted by the police who led him to the scenes of crime and advised him what to do and say. On the day the indications were made, he simply complied for fear of further ramifications. He was photographed while making the indications. The photographs were produced at the trial.</p> <p>The State led evidence from six witnesses. The first witness was from ZESA. His evidence established the commission of the offence. He provided transport at the time the appellant went for indications. The indications were made in his presence. He said the appellant made the indications freely and voluntarily. Under cross examination the appellant disputed that piece of evidence. Other witnesses gave evidence including Nyakusengwa of Kotwa High School. He was present when the indications were made. He said the appellant freely made the indications. Appellant disputed this. Similarly, Keith Enani a ZESA artisan’s evidence on the voluntariness of the indications was disputed by the appellant. Despite the clarion call for a trial within a trial it did not occur to the prosecution to conduct it. The prosecutor happily called the investigating officers. The prosecutor had the audacity to ask the investigating officer to comment on the challenge by the appellant. The following exchange took place at p 45 of the record. </p> <p>            “Q.      2ndaccused said he did not drain the transformer oil.</p> <p> </p> <ol> <li>He is lying to the court. If he did not, he would not have made indications which were made freely and voluntarily. Further I did not know of the Kotwa hospital and Kotwa location which were drained they led me there.</li> </ol> <p> </p> <p>Q.        2ndaccused said you advised them to point to the areas drained oil</p> <p> </p> <p>A.        He is lying because I could not force them when they led me to other places where oil was drained. </p> <p> </p> <p>Q.        2ndaccused said you forced them to go for indications</p> <p> </p> <p>A.        That’s a lie, 2ndand 3rdaccused made indications freely and voluntarily.”</p> <p> </p> <p> The exchange shows that the State was aware that the indications were challenged including the photographs that were produced. The standard of prosecution in this case did not serve the interests of justice. It actually compromised the proper delivery of justice. A diligent prosecutor in such circumstances should have applied for a trial within a trial to be conducted. It is for the State to establish the conditions of admissibility. In this case the State failed. </p> <p> In its judgment, the trial court highlighted that the appellant challenged the indications. However, it dismissed the challenge in one sentence that, </p> <p>“The two accused persons however told the court that they were heavily assaulted by the police for them to make confessions. They made these allegations during trial but when they appeared in court for initial remand, they never advised the court of same. When they were asked if they had complaints against police (sic).”</p> <p> </p> <p>            The finding is misdirected. When an accused person appears in court on initial remand, he is expected to register any complaints against the police. The finding by the trial court assumes that when the appellant appeared for initial remand, he had already made the indications. There was nothing before the court to support this conclusion. It was based on conjecture. A finding on the admissibility of a statement cannot be made save after a trial within a trial. It does not matter that the accused’s allegations are incredible. Similarly, its does not matter that some witnesses observed the accused making the indications and concluded that the indications were made freely and voluntarily as in this case. The purpose of a trial within a trial is to establish whether before and during the making of the indications the accused was not subjected to some form of influence to make the indications. Thus, in the event where some influence is borne on the accused before the making of the indications, those who witness the making of the indications may not even know about the unlawful influence. </p> <p>            The failure to properly determine the admissibility of the indications in a trial within a trial is a misdirection. The evidence of the utterances made during the indications cannot be relied on in this case. What remained before the court is the fact that transformer oil was stolen from the four places without evidence linking the appellant to the offences. The first ground of appeal succeeds.</p> <p>            The only piece of evidence that remained before the court were the containers. The court accepted that the containers were given to the appellant and the third accused by the first accused. This court’s task   is to determine if the trial court applied the law on circumstantial evidence correctly.  </p> <p>The leading case on circumstantial evidence is <em>R</em>v<em>Blom</em>1939 AD 188 at 202 – 203 which outlines how circumstantial evidence should be treated by the trial court in criminal matters. The cardinal principles are that;</p> <ol> <li> the inference sought to be drawn must be consistent with all proved facts. If not, the inference cannot be drawn</li> <li>the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is the correct one. See also M<em>arange &amp; Others</em>1991 (1) ZLR 244 (S).</li> </ol> <p>A court can return a verdict of guilty based on circumstantial evidence only see <em>S</em>v <em>Shonhiwa</em>1987 (1) ZLR 215 (S).</p> <p> I find no misdirection in the court’s finding. There was evidence that the first accused person was a diesel buyer. He used to borrow some peoples’ containers for use. The appellant and the third accused used to sell diesel to the first accused. The same containers given to the appellant and the third accused were found at Kotwa High School with transformer oil. Transformer oil had been stolen at that place.</p> <p>            The only inference is that the appellant and the third accused drained the transformer oil from the Kotwa High School transformer. The inference is consistent with the proved facts and admits of no other inference. The appellant did not indicate if he in turn gave the containers to someone else. </p> <p>            The second, third and fourth counts depended on the indications. The appellant benefits from the sloppy prosecution. He can only be liable in respect of the first count.</p> <p>            In respect of sentence. The trial court is impugned for not fully explaining the meaning of special circumstances.</p> <p>The ground of appeal makes a subtle concession that an explanation was given, although it lacked detail. The submissions are not supported by the record of proceedings. At p 77 of the record there is an indication that special circumstances were dealt with. Unfortunately, the trial court did not fully record what transpired. A Magistrate Court is a court of record. Therefore, a magistrate presiding over a matter must record everything that takes place during the proceedings. As matters stand this court is unable to tell what the explanation was all about.</p> <p>However, the non-recording is not fatal to the proceedings. The appellant confirms that there was an explanation. I find no misdirection in the court’s finding that there were no special circumstances. There was nothing peculiar to the commission of the offence. I did not hear appellant’s counsel refer to even a single special circumstance that the appeal court could consider. Indeed, the circumstances of this case admit of no special circumstances.</p> <p>            The offence that the appellant stood convicted of comes with a minimum mandatory sentence of 10 years where there are no special circumstances. Since the drained transformer oil in the 1stcount was recovered it is unnecessary to order restitution.</p> <p>            </p> <p>From the foregoing the following order is made.</p> <ol> <li>The appeal against conviction and sentence in the 2nd,3rdand 4thcounts is allowed. </li> <li>The convictions and sentence are set aside and substituted as follows,</li> </ol> <p>‘Not Guilty and Acquitted’</p> <ol> <li>The appeal against conviction in the 1stcount is dismissed.</li> <li>The appeal against sentence partially succeeds. The sentence is altered as follows</li> </ol> <p>‘i.  10 years imprisonment. </p> <p>ii. The clerk of court is ordered to return the recovered transformer oil to ZESA.</p> <p>iii. All the recovered tools used in the commission of the offence are forfeited to the State.’</p> <p> </p> <p><em>IEG Musimbe &amp; Partners</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p>CHIKOWERO J Agrees ………………………..</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/677/2020-zwhhc-677.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26612">2020-zwhhc-677.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/677/2020-zwhhc-677.pdf" type="application/pdf; length=122084">2020-zwhhc-677.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/theft">Theft</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/admissibility-evidence">Admissibility of evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/circumstantial-evidence">Circumstantial (EVIDENCE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-evidence">Criminal matter (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 25 Nov 2020 09:51:52 +0000 Sandra 9953 at https://old.zimlii.org