appeal from magistrates court https://old.zimlii.org/taxonomy/term/9538/all en 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 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 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 S v Sibanda & Anor (HMA 47-20, CRB DWP 405-6-20 Ref Case B 196-20) [2020] ZWMSVHC 47 (14 September 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/47 <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>ISMAEL SIBANDA</p> <p> </p> <p>And</p> <p> </p> <p>ANDREW MASANDO</p> <p> </p> <p>versus</p> <p> </p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO 2ND SEPTEMBER &amp; 14TH SEPTEMBER, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Bail Appeal</strong></p> <p> </p> <p> </p> <p><em>Mr I. Murambasvina</em>, for the appellants</p> <p><em>Ms M. Mutumhe,</em> for the state</p> <p> </p> <p> </p> <p> </p> <p>ZISENGWE J:            This is an appeal again the decision of the Magistrate Court denying the two appellants bail pending trial. The appeal is brought in terms of s 121(1)(b) of the Criminal Procedure and Evidence, Act [<em>Chapter 9:07</em>] as read with Rule 6(1) of the High Court (Bail) Rules, 1971.</p> <p><strong>The Background Facts</strong></p> <p>The appellants were arrested in Kwekwe on allegations of robbery (contravening section 126 (1) (a) of the Criminal Law (Codification and Reform) Act, [<em>Chapter 9:23</em>]). The allegations constituting the offence are set out in both the charge and the state outline attached to the papers filed of record in this appeal and are to the following effect.</p> <p>That on 26 February, 2020 the two appellants were part of a group of people who teamed up to rob the complainants the latter who at the material time were employees at a certain mining location.</p> <p>The state further alleges that to that end they (i.e. the appellants and their yet to be accounted for accomplices) armed themselves with an assortment of weapons amongst them sjamboks, machetes and axes. Aboard a certain truck, they then proceeded to the mine in question (Ingwenya 61 Mine). </p> <p>Upon arrival they descended on the complainants in one fell swoop, viciously attacking them with the above mentioned weapons before making away with their ill-gotten haul comprising 7 tonnes of gold ore, 200 litres of diesel and a box of explosives.</p> <p>It is alleged that the two appellants (having been recognised and identified by some of the victims) were arrested a short while later in Kwekwe.</p> <p>Their application for bail before the Magistrate Court ended in failure. In that application which was quite brief, the prosecutor opposed the granting of bail and enumerated five grounds for adopting that position, these were:</p> <ul> <li>That the appellants had used dangerous weapons in the course of the robbery</li> <li>That it was in the interests of justice to deny the appellants bail</li> <li>That there was a disconcerting upsurge in cases of this nature</li> <li>That the accused who were described as gold panners were of no fixed abode; and</li> <li>That bail should be refused in the interests of the safety of the public</li> </ul> <p>The appellants who were unrepresented at that stage implored the court to release them on bail to enable them to continue fending for their families. Further without elaborating, they both denied any involvement in the commission of the offence or using any weapons. In addition the 2nd appellant offered that if released on bail he would continue residing at a given address in Kwekwe.</p> <p>In his ruling (which consisted of only two sentences) the Magistrates stated as follows:-</p> <p>“<em>The court is of the view that cases of this nature are on the increase and that accused persons who are placed on remand on such matters are remanded in custody generally for public safety. Hence the court at this point is not moved as t release the accused persons and will remand them in custody pending changing (sic) circumstances in the ….”</em></p> <p> </p> <p> </p> <p> </p> <p>            <strong>The grounds of appeal</strong></p> <p>In attacking the above decision, it was contended that the court below had applied wrong principles in arriving at the same. More particularly it was averred that the Magistrate committed a “gross irregularity” in denying appellants bail without a finding that there were compelling circumstances justifying the same.</p> <p>It was further contended that the Magistrate had failed to apply the guidelines set out in s 117 of the Criminal Procedure and Evidence Act.</p> <p>In amplification of the grounds of appeal, the appellants submitted heads of argument. The thrust of those heads was to stress the following points:-</p> <ol> <li>That the appellants’ constitutional right to be a presumed innocent until proven guilty (Section 70(i) (a)) of the Constitution) was violated.</li> </ol> <p> </p> <ol> <li>That the court <em>a quo</em> appears to have already prejudged the matter and having assumed the duo’s guilt</li> </ol> <p> </p> <ol> <li>That the court <em>a quo</em> appears to have adopted an inflexible approach to incarcerate alleged offenders facing this species of offence</li> </ol> <p> </p> <ol> <li>That the court <em>a quo</em> had failed to strike the proper balance between protecting the individual liberty of the alleged offender on the other hand and the due administration of justice in the other</li> </ol> <p> </p> <ol> <li>That justice is best served by giving the appellants bail with certain conditions.</li> </ol> <p> </p> <p>This appeal is opposed by the State whose attitude is that there was no material misdirection by the court in refusing to admit the appellants to bail. Reference was made to the pervasive menace posed by machete wielding gangs. The upshot of their argument being that the court a quo exercised its discretion properly in denying the appellants bail given that at the material time the country was literally under siege from the marauding gangsters going by the appellation “Mashurugwi”. The corollary being that the court a quo was correct holding that the citizenry deserved protection from them.</p> <p> </p> <p> </p> <p><strong>The issue</strong></p> <p>The main issue is whether there was a material misdirection on the part of the court, apparent or implicit, from its reasons for ruling vitiating its decision.</p> <p>It is trite that the court before whom the original application for bail is made enjoys a discretion (properly exercised) whether or not to admit an alleged offender to bail. Barring a misdirection on the part of the court of first instance, the court of appeal does not interfere with that decision.</p> <p>The words of GOWORA JA (<em>as she then was</em>) in the case of <em>Fradeck Chimwaiche</em> v <em>State </em>SC 18/2013 are instructive:</p> <p>“<em>The granting of bail involves an exercise of discretion by the court of first instance. It is trite that this court would only interfere</em> <em>with the decision of the learned judge in the court a quo if she committed an irregularity or exercised her decision so unreasonably or improperly as to vitiate her decision. The record of proceedings must show that an error has been made in the exercise of discretion, either that court acted on a wrong principle, allowed extraneous or irrelevant considerations to affect its decision or made mistakes of fact, or failed to take into account relevant matters in the determination of the question before it.”</em></p> <p> </p> <p>See also <em>Chivhayo</em> v <em>The State</em> SC 94/95, <em>State</em> v <em>Chikumbirike</em> 1986 (2) ZLR 145 (SC) and <em>State </em>v <em>Ruturi</em> HH 26/03.</p> <p>If no misdirection is found to exist, <em>cadit quaestio</em>. If, however, the decision by the court a quo is afflicted by a material misdirection then the appeal court is at liberty to substitute its discretion for that of the courta quo; <em>State</em> v <em>Ruturi</em> (<em>supra</em>), <em>State</em> v <em>Chikumbirike</em> (<em>supra</em>).</p> <p><strong>Addressing the grounds of appeal</strong></p> <ul> <li><strong>The alleged infringement of the constitutional right to be presumed innocent.</strong></li> </ul> <p>In this regard the appellants allege that the Magistrate committed a grave misdirection in proceeding on the footing which suggests that they (i.e.) appellants have already been convicted and as such deserve to be noted with a “deterrent measure”.</p> <p>More pertinently it was contended as follows by the appellants <em>“It is clear in the mind of the learned trial [Magistrate] in the court a quo that the appellants are GUILTY of the allegation and deserved to be taken away from society. It is a gross misdirection to deny accused persons bail pending trial on such spurious and capricious reasoning. The bail system cannot be used as a deterrent measure or for retributive purposes as doing so is an infringement of an accused person’s constitutional rights</em>.”</p> <p>However during oral arguments in this appeal, counsel was at pains to justify that interpretation given to the Magistrate’s ruling. No basis exists in my view for foisting such an interpretation. The Magistrate neither employed the terms “deterrence” or “retribution” in his ruling nor is that implicit from it.</p> <p>Further s 117 of the Criminal Procedure and Evidence Act permits the court to refuse bail on the basis that the release of the accused might compromise the safety of the public. It provides in subsections (1) (2) and (3) as follows:</p> <p>            <strong>“117 Entitlement to bail</strong></p> <ol> <li>Subject to this section and section 32, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she be detained in custody.</li> <li>The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established –</li> </ol> <ul> <li>Where there is a likelihood that the accused, if he or she were released on bail, will-</li> </ul> <ul> <li>Endanger the safety of the public or any particular person or will commit an offence referred to in the First schedule; or</li> <li> </li> <li> </li> <li> </li> </ul> <p>       (b)…</p> <p>(3) In considering the ground referred to in –</p> <p>        (a) subsection (2) (a) (i) has been established, the court shall, where applicable, take into account the following factors, namely-</p> <p>              (i) the degree of violence towards others implicit in the charge against the accused;</p> <p>               (ii) …</p> <p>               (iii) …</p> <p>                (iv) Any other factor which in the opinion of the court should be taken into account</p> <p>    </p> <p>            It is also apparent that the Magistrate in respect of (iv) above (i.e. any other relevant factor) took into account (as he was perfectly entitled to do) the upsurge in cases of violent crimes committed by the so called “Mashurugwi”. Although the Magistrate did not say so in as many words, it is clear that he took judicial notice of the scourge of these machete gangs who reportedly terrorise mining communities and occasionally urban centres. These gangs have in general terms earned a notoriety of their own.  </p> <p> </p> <p>As a general premise, therefore, no misdirection, therefore, can be imputed from having regard to the need to protect the safety of the public. Suffice to say that the argument that the Magistrate did not take guidance from section 117 of the Criminal Procedure and Evidence, Act cannot be sustained.</p> <p> </p> <ul> <li><strong>The alleged failure to individualise appellants’ circumstances</strong></li> </ul> <p>This ground is quite a different matter. Here the complaint is that the Magistrate adopted a blanket or ‘policy’ approach to this species of offences. Such an approach, so the argument goes, amounts not only to a violation of the appellants’ right to be presumed innocent until proven guilty but also goes against s 50 of the Constitution which guarantees bail as a right (save where compelling reasons justifying the refusal of bail exist).</p> <p>I find that there is merit in that argument. By stating that <em>“… accused persons who are placed on remand on such matters are remanded in custody generally for public safety</em>” without anything further, the Magistrate appears to have adopted the rigid position that regardless of the facts, all offenders who are arrested on allegations of robbery in circumstances such as the present should and will not be granted bail.</p> <p>Such an approach, of course is erroneous and indefensible. Not only does it offend the right of an accused to be presumed innocent (until proven guilty by a competent court of law) but it is the very antithesis of s 50 of the Constitution which entitles an accused to bail (save where compelling reasons can be established justifying the refusal of bail).</p> <p>It was incumbent upon the court <em>a quo</em> to, at the very least to demonstrate its appreciation of the various factors and principles at play and how these had a bearing on the appellants’ peculiar set of circumstances and why it was felt that there exist compelling circumstances justifying the refusal of bail.</p> <p>Failure to do so provided ample ammunition to the appellants to attack the ruling on the basis that the court <em>a quo</em> misdirected itself in concluding that in all cases involving the so called “Mashurugwi” bail will be denied. In other words the court appears to have shut its mind to the possibility that within that class of alleged offenders, there may be some who genuinely deserve (for one reason or the other) to be released on bail.</p> <p>A material misdirection therefore occurred warranting the appeal court to have a relook at the facts and exercise its own discretion.</p> <p>Robbery, particularly one committed in the circumstances such as the present one is an extremely serious offense which upon conviction is likely to attract a lengthy custodial sentence.</p> <p>However, cases abound wherein it is stated that the seriousness of any offence alone is not a good ground to deny an accused bail, and the apprehension of abscondment in my view can be allayed by the imposition of appropriate reporting and other conditions.</p> <p>It has not escaped my attention that whereas the prosecutor submitted in the proceedings <em>a quo</em> that appellants are of no fixed above and as such are a serious flight risk, the state outline suggests otherwise. It states that the two reside in the Mbizo suburb of Kwekwe. The exact addresses are given. This probably explain in part how they were quickly tracked down and apprehended.</p> <p><strong>Disposition</strong></p> <p>In the final analysis I am of the view that a fairly substantial bail amount (reflective of the seriousness of the charge) coupled with appropriately stringent reporting (and other) conditions will strike that balance between respecting the liberty of the appellants on the one hand and ensuring the due and proper administration of justice on the other.</p> <p> </p> <p> </p> <p> </p> <p>Accordingly, the following order is hereby given:-</p> <p><strong>Order</strong></p> <p>It is ordered that:-</p> <ol> <li>The appellants appeal against refusal of bail by the Magistrate succeeds and each appellant is granted bail on the following conditions –</li> </ol> <ul> <li>Each appellant to deposit the sum of ZWL$10 000 (ten thousand Zimbabwe dollars) with the Clerk of Court, Gweru.</li> <li>The appellants to reside at House No. 502 Mbizo 5, Kwekwe until the finalisation of this matter.</li> <li>The appellants not to leave the confines of the city of Kwekwe without the express permission of the Investigating Officer of this case until the finalisation of this matter.</li> <li>The appellants to report twice a week on Mondays and Fridays at ZRP Mbizo between 6.00 am and 6.00 pm</li> <li>The appellants not to interfere with State witnesses and/or investigations.</li> </ul> <p> </p> <p><em>Murambasvina Legal Practice</em>, appellants’ legal practitioners   </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/masvingo-high-court/2020/47/2020-zwmsvhc-47.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25723">2020-zwmsvhc-47.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/masvingo-high-court/2020/47/2020-zwmsvhc-47.pdf" type="application/pdf; length=426021">2020-zwmsvhc-47.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/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/c">C</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/bail-0">Bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-bail">grant of bail</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-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 class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 21 Sep 2020 21:24:34 +0000 Sandra 9858 at https://old.zimlii.org S v Chin'ono (HH 567-20, B1359-20) [2020] ZWHHC 567 (02 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/567 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><div> <p class="rteright">HH 567-20</p> <p class="rteright">B1359/20</p> <p class="rteright">Ref CRB 6801/20, CRB ACC 77/20, B 1226/20</p> <p> </p> <p class="rtecenter">HOPEWELL CHIN’ONO</p> <p class="rtecenter"> </p> <p class="rtecenter">versus</p> <p class="rtecenter"> </p> <p class="rtecenter">THE STATE</p> <p class="rtecenter"> </p> <p class="rtecenter">HIGH COURT OF ZIMBABWE</p> <p> </p> <p>CHITAPI J</p> <p> </p> <p>HARARE, 27, 28 August and 2 September, 2020</p> <p><strong>Appeal against refusal to grant bail section 121 (1) of Criminal Procedure and Evidence Act </strong><em>[Chapter 9: 07]</em></p> <p> </p> <p><em>N. Nyamakura</em> with <em>T. Mapuranga,</em> for the appellant</p> <p><em>E. Makoto</em> with <em>W. Mabhaudhi,</em> for the respondent</p> <p> </p> <p>CHITAPI J: This is an appeal against the judgment of the learned magistrate N. Nduna Esquire made on 24 August, 2020. In the judgment how on appeal the learned magistrate dismissed the appellant’s application for bail made in terms of s121 (1) (b) as read with the proviso (ii) to subsection (c) of s 116 of the Criminal Procedure and Evidence Act, <em>[Chapter 9: 07].</em> The bail application which was dismissed by the learned magistrate was a second attempt following the dismissal of his initial bail application by the same learned magistrate on 24 July, 2020. An appeal noted against the initial application was dismissed on appeal in a judgment HH 579/20 which I prepared and delivered on 6 August, 2020.</p> <p>In regard to the dismissed follow up application, the appellant relied on the provisions of proviso (ii) to subsection (c) of s 116 which read as follows-</p> <p>“(c) (ii) where an application in terms of section 117A is determined by a judge or magistrate, a further application in terms of section 117A may only be made, whether to the judge or magistrate who has determined the previous application or to any other judge or magistrate, if such application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after the determination. ”</p> <p>In regard to section 117A referred to in the quoted proviso, its provisions read as follows-</p> <p> “(1) Subject to the proviso to section 116; an accused person may at any time apply verbally or in writing to the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate. ”</p> <p>The rest of the subsections of 117A being subsections 2 to 9 are not relevant to explaining the nature of the application envisaged in subsection 116. I propose to unpack the provisions quoted for guidance where after I will then relate to the facts of the application made before the learned magistrate and the grounds of appeal.</p> <p>The points to note from section 116 is that it is intended to give the person whose bail has been refused an opening or openings to repetition the judge or magistrate to reconsider a decision previously made to deny the accused bail. For such an application to be competent; the application must be based on facts which were not placed before the judge or magistrate who presided over the dismissed prior application. Secondly, the facts relied upon must have arisen or been discovered after the previous determination. In short, the facts which ground the application must not have been available to the accused person at the time of making the prior application and been deliberately withheld or not been pleaded. If such facts are shown to have been available, the accused is not entitled to base the application on the known facts. Thirdly where facts relied upon are discovered after the prior determination, such facts will form a proper ground for determination of the fresh application. The application has now become generally known in legal parlance as a bail application based on changed circumstances.</p> <p>In terms of handling the application, the judge or magistrate before whom such an application is placed for disposal will only assume jurisdiction to determine the application if the applicant established on a balance of probabilities the existence of what may be called new fact which were not placed before the judge or magistrate in the previous determination or been discovered after the determination. What constitutes a new fact is a factual consideration. Such new facts must be related to the circumstances of the case or the applicant. Once the new facts have been alleged, the onus shifts to the prosecution to disprove that the fact or facts are new. The onus on the prosecution is discharged on a balance of probabilities as well. In the case <em>if S v Barros &amp; Ors</em> 2002 (2) ZLR 17 Hlatshwayo J (as then he was) reasoned that the purpose of s 117A was to '"’-obviate the presentation of the same facts or variants thereof, over and over again in a bid to obtain bail and helps in achieving finality in the matter. ” (See p 20 B-C). I agree. However, I would add that the section must be seen as promotive of the rights of an accused person to continue to have access to the court to apply to be liberated from custody unless there exists compelling reasons to deny the accused admission to bail for as long as the accused is in custody pending trial. What invariably happens is that upon being brought to court, certain allegations as ground a reasonable suspicion that the accused person committed the offence charged are made against the accessed and if ruled to ground the reasonable suspicion the accused is placed on remand. If he or she is remanded in a custody a bail application is then made before the remand court or the High Court, the choice being a matter of the jurisdiction of the two courts. If bail is refused, it is denied on the allegations made. The allegations with time will continue to be considered and where they have altered to the extent that the alterations impact on the reasons and/or basis for denying bail in the initial application, the altered facts amount to changed circumstances.</p> <p>Once the applicant has established changed circumstances which are determined as such on a case by case basis, the judge or magistrate will reconsider whether bail should still be granted or continue to be denied given the altered scenario or new facts. In the case of <em>Daniel Range</em> v S, HB 127/04 CHEDA J stated on p 2 of the cyclostyled judgment that</p> <p>“In determining changed circumstances, the court must go further and enquire as to whether the changed circumstances have changed to such an extent that they warrant the release of the suspect on bail without comprising the reasons for the initial refusal of the said bail applications. ” See also <em>Mavabwa</em> v 5 HB 89/18 <em>per</em> MAKONESE J and cases therein cited.</p> <p>A changed circumstance before it can persuade a change of the prior bail refusal must be of such a nature and quality that it impacts substantially on the grounds for the refusal of bail being revisited.</p> <p>The last point I must interrogate is that once the judge or magistrate determines that the facts alleged by the applicant are new or have been discovered after the previous determination, the prosecution’s onus to establish compelling reasons to deny the applicant bail must be discharged before the bail application can again be refused. The onus in this case upon a reading of the provisions of s 115C of the Criminal Procedure &amp; Evidence would be on the prosecution.</p> <p>Reverting to the facts of this matter, they are set out in the judgment of the learned magistrate date 24 July 2020 and repeated in my judgment on appeal case No. HH 519/20. They are further repeated in the judgment of the learned judgment dated 24 August 2020 which is subject to this appeal. There is in such a case no need to regurgitate the facts. It is common cause that the appellant was denied bail on a charge of incitement to commit public violence as defined in s 187 (1) (a) of the Criminal Law (Codification and Reform) Act <em>[Chapter</em> 9: 25] as read with s 36 which defines Public Violence, criminalizes it and provides for a penalty upon conviction.</p> </div> <p>The first point to note is that this matter is on appeal before me. As I pointed in judgment <em>Chin 'ono v State</em> No. HH 519/20, and relying on various judgment which are set out therein, the learned magistrates judgment can only be interfered with if the learned magistrate committed a misdirection or an irregularity or exercised his or her discretion so unreasonably or improperly as to vitiate the decision reached. On appeal the appeal judge is limited to considering the four corners of the record of proceedings on appeal.</p> <p>In <em>casu,</em> the operative part of the learned magistrate’s judgment read as follows:</p> <p>“I accordingly refuse the application and dismiss the bail reapplication on the basis that it is devoid of any new facts or circumstances warranting the court to reconsider its initial decision. ”</p> <p>The long and short of the above finding was that the learned magistrate determined that the provisions of proviso (ii) to s 116 (C) were not satisfied in that there was no change in the situation as it existed when the prior bail application was made and in the follow up dismissal application.</p> <p>The main issue on appeal was therefore whether or not the learned magistrate misdirected himself in making the findings or order he made. If he was misdirected, in law, fact or both then I will assume jurisdiction to reappraise the facts and determine whether bail should be granted. If I agree with the learned magistrate, then the appeal would be dismissed. The appellant in the application made orally before the learned magistrate submitted a number of factors which he said, constituted new or changed facts as follows</p> <p><a name="bookmark0" id="bookmark0"></a>i)    Firstly, that the period that police had indicated as required to complete investigations had passed without a trial date having been allocated for the matter.</p> <p><a name="bookmark1" id="bookmark1"></a>ii)   Secondly, that the 31<sup>st</sup> July 2020 being the date pencilled for the incited demonstrations had come and gone with no incident of either protests or violent demonstrations. The argument made was that the danger which it was feared would take place on 31 July 2020 no longer existed.</p> <p><a name="bookmark2" id="bookmark2"></a>iii)  Thirdly, that there were health concerns obtaining in prisons where appellant is held because COVID 19 W.H.O. protocols were not being observed as would contain the spread of the COVID virus and that the appellant was entitled to his rights to health in terms of s 76 of the Constitution. In this regard, reliance was placed on the case <em>Kettles</em> v <em>State</em> HB 119/20 where the risk of contracting the CO VID virus in prison was considered as a factor to be invoked in favour of granting bail to an accused person.</p> <p>In regard to the non-completion of investigations as undertaken in the Form 242, the learned magistrate in his judgment did not advert to this fact or its relevance and impact as a new factor to be considered. When an accused is brought before the court on initial remand and an application for a remand in custody is made and granted, with bail having been denied, it is a relevant consideration when determining bail to take into account the nature of investigations to be conducted and their complexity as well as the time which the police indicate as the estimated time to complete investigations. The importance of this factor is easily understood if one considers the provisions of s 117 (2) (a) (iii) which provides that it will be in the interests of justice to deny bail where there is a likelihood that the accused will “attempt to influence or intimidate witness or to conceal or destroy evidence, “what is implicit in the quoted text is that where police have had the time they asked for to wrap up investigations, the fear of witness intimidation and concealment of evidence will have been taken care of since investigations would have been completed. In argument before me, the prosecution did not albeit acknowledging that the issue was raised, submit on whether the passage of time was a changed circumstance. The passage of time is always a changed circumstances depending on the circumstances of each case see <em>State</em> v <em>Mathuthu</em> HH 182/17. The passage of time may combine with other factors to constitute a persuasive factor to move the judge or magistrate to consider granting bail to avoid pre-incarceration prejudice without movement in the holding of a trial within a reasonable period as provided for in s 69 of the Constitution. The learned magistrate was misdirected in law in not making a ruling on whether or not the passage of time constituted a new factor warranting a reconsideration of the bail suitability of the appellant. The passage of time would have been considered against the backdrop that the police had undertaken to complete investigations within “3 weeks” as endorsed on the request for remand (Form 242) but had not done so with no explanation given or proferred.</p> <p>The learned magistrate related the passage of time to the key circumstances raised by the appellant that the 31<sup>st</sup> July 2020 had come and gone. The appellant argued that bail had been denied at the initial hearing because it was considered that the date on which the incited demonstrations were pencilled for had come and gone without demonstration. The prosecution argued that the passage of time in this regard was not a new circumstance or fact. The crux of the prosecution argument made before the learned magistrate and persisted on an appeal before me was that, whilst the call for the demonstration was made for that date, the aim was to remove the government from power. It was therefore argued that because the government which was intended to be removed from power was still in power, the proposed violent demonstrations remained pending. The learned magistrate accepted the prosecution argument</p> <p>The learned magistrate stated that the initial decision to deny the appellant bail was not to be restricted to what was intended to be done on 31 July, 2020. He reasoned that the condition precedent to the stoppage of the violent protest which the applicant was accused of fermenting, being the removal of government, had not been achieved. Further he reasoned that the appellant and other “proponents” whom he did not name had not denounced the calling for violent demonstrations. The 31<sup>st</sup> July, 2020 according to the learned magistrate lost its significance. The learned magistrate concluded that the violent demonstrations remained pending and that the demonstrations were to be considered as a process and not an event, He reasoned that the 31<sup>st</sup> July was the date of commencement of the process, Significantly, the learned magistrate stated as follows on page 14 of his judgment.</p> <p>“It is on the pendency of the planned demonstration until the government is removed that the date of 31<sup>st</sup> July, 2020 should be accessed. It therefore remains today as necessary as it was on 22 July 2020 when the initial decision was delivered to limit applicant’s right to liberty. ”</p> <p>The learned magistrate found that the state’s argument on continuity of the intended demonstration pencilled for 31<sup>st</sup> July, 2020 accorded with “common sense and logic. ” In particular, the learned magistrate stated on page 14 of his judgment as follows:</p> <p>“Accordingly, even if that date has passed by, it does not in the totality of facts remove the compelling reason initially advanced by the State so as to found authority for the court to interfere with its previous decision to refuse bail. ”</p> <p>The learned magistrate then dismissed the application and stated as follows:</p> <p>“I accordingly refuse the application and dismiss the bail reapplication on the basis that it is devoid of any new facts or circumstances warranting the court to reconsider its initial decision. ”</p> <p>As already indicated the appellant argues that the learned magistrate erred in fact in dismissing the issue of the passing of 31<sup>st</sup> July, 2020 as an event which amounted to a changed circumstance, A holistic consideration of the previous application and judgment in my view undoubtedly show that the 31<sup>st</sup> July, 2020 was key in that it was demonstration day. I did not find anything from the tweets attributed to the appellant to show that the demonstrations should continue beyond that date. There is no doubt that the tweets were threats to remove ZANU PF from government and by parity of reasoning, the encumbent government through the 31<sup>st </sup>demonstration. The main reason for seeking the removal of government was given in the tweets as that they were looters of public funds who not only rig elections but would have the backing of the judiciary to sanitise the looting and election rigging. Further the tweets complained that citizens were dying in their homes without health care or clean water due to looting and corruption.</p> <p>In the previous judgment, the learned magistrate properly held that the tweets should not be read independently of each other but as a whole. I agreed with this construction or approach in the appeal judgment HH 519/20. The learned magistrate was also correct in his reasoning that by discounting elections as a method of removing government from power, it was reasonable to infer the use of non-constitution means to remove the government. There is however no reference in the tweets nor in the previous ruling to indicate that continuity of demonstrations beyond 31<sup>st</sup> July, 2020 was advocated for. The 31<sup>st</sup> July 2020 was D. Day so to speak. It is a common cause fact that the learned magistrate ought to have taken judicial notice that the nation was on edge on 31<sup>st</sup> July, 2020 because of uncertainly on what would happen in regard to the threatened demonstrations. The government commendably and rightfully addressed the citizenry through media and other communication means to go about their business as usual and not engage in violent demonstrations. I have said that the government acted commendably because it acted by dissuading the citizenry from engaging in public violence which is a punishable crime. The 31<sup>st </sup>July indeed came and is gone. It is certainly a new fact warranting the court to reconsider the previous decision. It is so, despite the fact that the flopping of the demonstrations would not have been attributed to the appellant since he never called them off. It is therefore clear on the evidence that it was all about 3l<sup>st</sup> July 2020 and the fact that nothing happened and the day has passed is a new fact. It is improper in my view for a court to anticipate the future events unless there are definite pointers or plans put in place to happiness in the future, I therefore determine that the learned magistrate was misdirected in fact and consequently in law to hold that the passing of 31<sup>st </sup>July 2020 was not a new circumstances impacting on bail.</p> <p>The ground of appeal relating to the prison conditions was dealt with. I was informed that the appellant had obtained relief in this court in regard to his complaint on prison conditions in which he was lodged in case no. HC 4248/20. I do not consider it necessary to go into depth on that in any detail save to state that the health condition of an accused person is a relevant factor to be taken into account when considering bail in terms of section 117 (4) (e) of the Criminal Procedure and Evidence Act. In regard to this ground of appeal, it was submitted that the learned magistrate erred at law in not considering the lengthy testimony of the appellant which was given in court. In fact the learned magistrate erroneously noted that the appellant had after indicating that he would testify refrained or capitulated from doing so after a ruling was made to record the appellant’s testimony in camera. The learned magistrate commented that the applicant had capitulated because his intended audience had been cleared from the courtroom. In reasoning so, the learned magistrate was misdirected because the appellant in fact gave evidence. It is trite that a judicial officer commits a serious misdirection which vitiates the judgment reached where the judicial officer omits to deal with evidence led and proceeds to give judgment oblivious of such evidence. In this case it was worse because the learned magistrate actually mentioned that there was no evidence led yet there was.</p> <p>Having found that the learned magistrate misdirected himself. I am empowered to interfere with the learned magistrate’s judgment if I consider that this is warranted. Appellants counsel submitted that the appellant was arrested for using his twitter account to reach out to the people. The applicant offered not to use the twitter to incite people or to use it at all. The 31<sup>st</sup> July, 2020 has come and gone. It is a fact that appellant is on remand on reasonable suspicion that his twitter chats constituted an offence. It would be foolhardy for the appellant to apply for bail, be granted bail and go out of prison to do the same thing for which the appellant was arrested and incarcerated. He has in proposed bail conditions in his draft order undertaken not to engage in the use of the twitter account. It appears to me that although the applicant does not consider that he is guilty and has every right to profess his innocence until found guilty, he must desist from further offending or engaging in similar conduct until the charges he presently faces are disposed of.</p> <p>The prosecution submission that the applicant has not accomplished his mission and will persist in inciting people to violently demonstrate as I I have noted is not backed by facts but is an inference. The inference is hardly the only reasonable one which can be drawn. There would need to be evidence of other pointers or facts proving that there is a plan by the appellant to pursue his agenda further through, further incitement. It cannot be said that after the D. Day of 31 July, 2020 passed without incident which clearly meant that the appellant failed to achieve his purpose, he had any plans for follow up demonstrations.</p> <p>The appellant can only continue to be incarcerated without bail if there is shown compelling reasons for his pre-trial detention to be perpetuated in the light of the changed circumstances. I am persuaded that no such compelling reasons can still be said to exist and the interest of justice will be served by the appellant’s admission to bail, however on conditions which are stringent enough to ally fears of the appellant absconding or engaging in the same conduct for which he was arrested. The appellant attached a draft order to his application and the conditions proposed thereon are reasonable. I will adopt them with an upward variation of the bail amount to $10 000. 00 from $5 000. 00 and impose a condition barring him from calling for mass demonstrations through twitter or other means pending the disposal of this case.</p> <p>Accordingly, the following order is made.</p> <p><a name="bookmark3" id="bookmark3"></a>1.   The appeal against the refusal by the court of the Magistrate sitting at Harare to admit appellant to bail on the 24 August 2020 be and is hereby granted. <a name="bookmark4" id="bookmark4"></a></p> <p>2.   The judgment by the Regional Magistrate’s Court, dismissing the applicant’s application for bail pending trial based on changed circumstances handed down on 24 August 2020 is hereby set aside. <a name="bookmark5" id="bookmark5"></a></p> <p>3.   Consequently, the appellant is admitted to bail on the following conditions:</p> <p class="rteindent1">3.1. The appellant shall deposit the amount of ZWL10 000-00 (ten thousand Zimbabwe dollars) with the Clerk of the Regional Court at Harare Magistrate Court.</p> <p class="rteindent1">3.2.             The applicant shall deposit his passport with Clerk of the Regional Court at Harare Magistrate Court.</p> <p class="rteindent1">3.3.           The appellant shall surrender his title deed to the property namely, certain piece of land situate in the district of Salisbury called  [redacted] held under deed of transfer No. [redacted]   to the Clerk of the Regional Court at Harare Magistrate Court.</p> <p class="rteindent1">3.4.         The appellant shall continue to reside at No. [redacted] Harare for the duration of the criminal proceedings.</p> <p class="rteindent1">3.5.               The appellant shall not post on his Twitter handle, namely @daddyhope or create any new twitter account for the use to incite the holding of mass demonstrations for whatever purpose until the case against him is finalized..</p> <p class="rteindent1">3.6.         The appellant shall report at [redacted]     Police Station every Mondays and Fridays between 06.00hrs and 18.00hrs.</p> <p> </p> <p><em>Mtetwa and Nyambirai,</em> applicant’s legal practitioners</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="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/567/2020-zwhhc-567.pdf" type="application/pdf; length=641473">2020-zwhhc-567.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-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/appeal-1">appeal</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/grant-bail">grant 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> Thu, 03 Sep 2020 12:53:17 +0000 Sandra 9853 at https://old.zimlii.org S v Chinóno (HH 519-20, B1226/20 X Ref HREP 1226/20) [2020] ZWHHC 519 (06 August 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/519 <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="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/519/2020-zwhhc-519.pdf" type="application/pdf; length=847128">2020-zwhhc-519.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-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</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 class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Thu, 06 Aug 2020 18:58:40 +0000 Sandra 9820 at https://old.zimlii.org S v Goche (HMT 18-20, CA 88/19) [2020] ZWMTHC 18 (27 February 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/18-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>IRIMAI GOCHE</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA &amp; MUZENDA JJ</p> <p>MUTARE, 5 February 2020 and 27 February 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal  </strong></p> <p> </p> <p> </p> <p><em>C N Mukwena</em>, for the appellant  </p> <p><em>M Musarurwa</em>, for the respondent</p> <p> </p> <p> </p> <p>            MUZENDA J: On 11 October 2019 the appellant was convicted of contravening s 53 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] for reckless driving and was sentenced to 2 years imprisonment, in addition he was prohibited from driving commuter omnibuses or heavy vehicles for the rest of his life in term of s 54 (4) (a) (b), further appellant’s licence was cancelled.</p> <p>            The appellant noted an appeal against both conviction and sentence. The state does not oppose the appeal in terms of s 35 of the High Court Act [<em>Chapter 7:06</em>] more particularly on the aspect of conviction. Having read the arguments presented before us by both counsel, we have the view that the concession by the state as against conviction was properly made and the conviction of the appellant for contravening s 53 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] is set aside and substituted by a conviction for contravening s 52 (2) of the Road Traffic Act, that is for dangerous driving.</p> <p>            As regards sentence, the conviction of reckless driving has been set aside, this court is at large to interfere with the sentence of 2 years imprisonment. The act provides an option of a fine of level 10 or for imprisonment of 1 year or to both. The manner the appellant drove on the day in question exposed both passengers and human traffic to serious danger, it is fortunate that no one died on the day in question. The conviction of appellant for dangerous driving is equally serious and it is my considered view that a fine will meet the justice of the case when cumulatively taken with the imminent prohibition. In the result the following order is returned:</p> <ol> <li>Both appeals against conviction and sentence are upheld.</li> <li>Accused is found guilty for contravening s 52 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] dangerous driving.</li> <li>RTGS 6000 or in default of payment 5 months imprisonment.</li> <li>Accused is prohibited from driving class 1 and 2 motor vehicles for a period of 2 years.</li> </ol> <p>MWAYERA J agrees _______________</p> <p> <em>Chibaya &amp; Partners,</em> appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, state’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/mutare-high-court/2020/18/2020-zwmthc-18_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24068">2020-zwmthc-18.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/mutare-high-court/2020/18/2020-zwmthc-18_0.pdf" type="application/pdf; length=296432">2020-zwmthc-18.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-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</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/1976/48">Road Traffic Act [Chapter 13:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Tue, 07 Jul 2020 11:14:29 +0000 Sandra 9767 at https://old.zimlii.org S v Muchedzi (HMT 22-20, CA 89/19) [2020] ZWMTHC 22 (19 February 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/22 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PHILLIP BRIAN MUCHEDZI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>                                                                                                                       </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA and MUZENDA JJ</p> <p>MUTARE, 19 February 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal (Reasons for Judgment)</strong></p> <p> </p> <p> </p> <p><em>W Mangwende</em>, for the Appellant</p> <p><em>M Musarurwa</em>, for the Respondent</p> <p> </p> <p> </p> <p>MUZENDA J: On 18 October 2019 the appellant was convicted for stock theft as defined  in s 114 (2) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] and was sentenced to 9 years imprisonment</p> <p>He appealed against conviction and set out the grounds as follows:-</p> <p>“GROUNDS OF APPEAL </p> <ol> <li>The trial court erred by placing a duty on the appellant to prove his innocence by sufficing that the circumstantial evidence before the court proved the appellant guilty beyond a reasonable doubt thereby convicting the appellant.</li> <li>The trial court erred in concluding that the totality of the evidence could ensure a conviction without hearing evidence from a material state witness Zvikomborero Ndedzo.</li> <li>The trial court erred in convicting the appellant whilst the identity of the perpetrators had not been established by the state witnesses who bought the carcass.</li> <li>The trial court erred in linking the pliers found at the crime to the appellant when there was no evidence that the appellant was ever in possession or in control of the pliers at the material time or at any time.</li> <li>The trail court erred by pacing value on hearsay evidence from one Antonio Mutoniya that the appellant was communicating with Zvikomborero Ndedzo. No evidence was led to show that indeed the appellant was communicating with Ndedzo or the nature of such communication if it existed.</li> <li>The trial court misdirected itself in concluding that the witness Antonio Mutoniya made a police report and thus concluding that he was a credible state witness when in fact he never gave evidence that he made the police report.</li> <li>The trial court erred by failing to treat the evidence of Anonio Mutoniya with caution as he was a potential accomplice taking into account that he had not had the beast cleared by the police, he bought the meat at night and that he had no record of the persons who sold the meat to him.</li> <li>The trial court erred by dismissing the appellant’s alibi even though the state had not managed to disprove or refute it.</li> <li>The trial court erred by failing to give due weight to the fact that indications by the police were forced, biased and also full of fabrications and that they were also allegedly made after the police had visited the scene and that it is at variance with the complainant’s evidence”</li> </ol> <p>The appellant prayed that the conviction and sentence imposed by the court <em>a quo</em> be set aside and that he be found not guilty and acquitted.</p> <p>FACTS</p> <p>The state alleged that on 27 April 2019, and at plot No. 84, St Faith, Rusape, Malven Muchedzi and the appellant, both and each or one or the other of them unlawfully took a black cow owned by Tafara Chitsike intending to deprive him permanently.  On the same date appellant contacted Zvikomborero Ndedzo on his mobile phone informing him that he was selling a cow which had suffered a broken leg.  Zvikomborero Ndedzo advised Peter Antonio Mutoniya through his mobile phone who agreed to buy the cow. On the same day at around 2000 hours, the appellant and his accomplice proceeded to the complainant’s cattle pen where appellant co-accused opened the kraal, entered and drove out a black cow whilst the appellant remained at the entrance. The appellant then closed the kraal and the two then drove the cow to Mutseriwa’s farm.  Upon arrival at the farm, appellant’s co-accused cut a barbed wire which surrounds the farm with a pair of pliers to gain entry into the farm. The two tied the cow to a tree and slaughtered it, skinned it and hid the hide between some rocks and carried the meat to a roadside leaving the pliers at the scene. Zvikomborero Ndedzo and Peter Antonio Mutoniya later arrived at the scene and met the two accused.  Appellant and his co-accused charged $700-00 for the meat and loaded it into the motor vehicle they were paid $400-00 on 28 April 2019. Peter Antonio Mutoniya deposited $60-00 into the appellant’s ecocash account. On 28 April 2019 in the morning complainant discovered that his cow was missing. He followed spoor which led him to the scene and recovered a plier. He later met Ananias Muchedzi who identified the pliers as belonging to him. The total value is $500-00</p> <p>The appellant in his defence outline denied stealing complainant’s cow. On 28 April 2019 he was never near complainant’s kraal, and was actually in Harare buying paprika. He denied knowing Peter Antonio Mutoniya and the $60-00 he was paid through ecocash from Zvikomborero Ndedzo was a payment for his debt, the extra $10-00 was for charges and a pint of beer for <em>gratis</em>.</p> <p>It is important to summarise the evidence that was relied by trial court to convict the appellant.</p> <p>Complainant Tafara Chitsike’s vital evidence is to the effect that when he discovered that his cow was missing from the kraal, he detected a spoor composed of human feet trail and hooves from his kraal, he got to where the fencing wire had been cut and discovered the hide, he also picked the pliers.  His neighbours came including Ananias Muchedzi who identified the pliers as belonging to him. Ananias Muchedzi is appellant’s father. He had been missing the pliers before complainant proceeded to the police Liberty arrived at complainant’s homestead saying he could not find his axe. Ananias Muchedzi informed complainant that he suspected Malven and appellant over the complainant’s missing black beast. Complainant told the court <em>a quo </em>that appellant admitted at the police stealing complainant’s cow and also promised complainant that he could give him the money he received from the buyer. Complainant under cross-examination added that when the appellant was at complainant’s home, he told complainant’s wife how they have stolen the cow.  Both appellant and Malven asked for forgiveness.</p> <p>Peter Antonio Mutoniya’s critical evidence is to the effect that he did not know the appellant but on the date in question, when he was with Zvikomborero where he loaded the meat appellant and Malvern Muchedzi’s names were identified as the owners of the meat. He paid a down payment of $400-00 and retained $300-00 to enable him to get an invoices from the owner of the meat. He deposited $60 through ecocash through appellant’s mobile phone as part payment of the balance of $300-00.  He was then told that appellant and Malven were wanted by the police.</p> <p>The police detail, Jephter Zivedza told the trial court that at first appellant denied the theft but later admitted and promised complainant that he will restitute him.  He also told the court that it was the appellant who led police to where the hide was concealed. During cross examination by defence counsel, the police detail reiterated that at first both appellant and Malven admitted stealing the cow and vowed to the complainant that they will compensate him</p> <p>The grounds of appeal are long, repetitive and meandering what we perceive at the centre of the appeal against conviction is that the court <em>a quo</em> should not have convicted the appellant.</p> <p>The appellant submitted that he had a defence of an alibi and stated that on the day in question he had sojourned to Harare to buy paprika and returned around 9.00pm. during hearing of the appeal, appellant’s counsel admitted that the appellant raised the alibi defence belatedly on the day of trial and during cross- examination of the appellant. The defence outline also shows that the appellant did not raise it specifically though he alluded to the paprika business. A defence of an alibi must be raised by an accused right from the outset, at the time an accused is informed of his or her own charges, he or she should immediately inform the police about his or her whereabouts at the time the alleged crime was committed.  This information would assist the police to verify the alibi through interviewing witnesses.  Invariably if the alibi is confirmed police will not logically insist with prosecuting the accused. And accused must not wait for the day in court and mischievously introduce the defence. The court may require the accused to call the witnesses to confirm such an alibi it will not be shifting an onus, it will be expecting an accused to authenticate his side of the story moreso where the state would have proved evidence which places the accused at the scene of the crime. The appellant in this case did not tell the police about the alibi he eluded to it during trial. The court <em>a quo</em> did not err nor misdirect itself in dismissing appellants alibi<em>.</em></p> <p>The evidence of the pliers, the mentioning of the names to the buyer of the meat, the indications and recovery of the hide, the promise to pay compensation to the complainant, the payment of $60-00 ecocash to the appellant, cumulatively puts credence to the inference reached by the court a quo.  A close trail of the events deduced from the evidence led by the state established that appellant and his accomplice stole the plier and collected an axe, used the implements in clearing the fence and slaughtering the beast. They sold the meat to Antonio Mutoniya who paid $400-00 and later on paid $60-00 to appellant for transport to go and collect the balance leaving an invoice to the buyer.  The evaluation of the evidence by the court in its judgement calls for no interference, its well-reasoned and the criticism by the appellant is unfounded and has no merit.  The appellant failed to prove allegations of compulsion where he made indications as well admitting to the complainant that he stole the cow.  All the nine supposed grounds of appeal have no merit and the appeal against conviction is dismissed.</p> <p>MWAYERA J agrees_____________________</p> <p><em>Chiwanza &amp; Partners,</em> appellants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, for the respondent</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/mutare-high-court/2020/22/2020-zwmthc-22.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34668">2020-zwmthc-22.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/mutare-high-court/2020/22/2020-zwmthc-22.pdf" type="application/pdf; length=327325">2020-zwmthc-22.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/theft">Theft</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stock-theft-see-criminal-procedure-sentence-statutory-offences-%E2%80%93-stock-theft">Stock theft See CRIMINAL PROCEDURE (SENTENCE) (Statutory offences – stock theft)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-statutory-offences">CRIMINAL PROCEDURE (SENTENCE) Statutory offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stock-theft-sentence-statutory">Stock theft (Sentence; Statutory)</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> Tue, 07 Jul 2020 10:28:32 +0000 Sandra 9763 at https://old.zimlii.org S v Chiguma (HMT 28-20, CA 86/19 Ref CRB RSPR 123/19) [2020] ZWMTHC 28 (05 February 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/28 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CRISPEN TICHAONA CHIGUMA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA &amp; MUZENDA JJ</p> <p>MUTARE, 5 February 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal (Reasons for Judgment)</strong></p> <p> </p> <p> </p> <p><em>C N. Mukwena</em>, for the appellant</p> <p><em>M Musarurwa</em>, for the respondent</p> <p> </p> <p> </p> <p>            MWAYERA J: The appellant was convicted for Rape as defined in s 65 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. The state alleged that on 29 January 2019 and at House number 2172 Messenger’s Camp, Nyanga, the appellant unlawfully had sexual intercourse with Vincencia Mundida without her consent or realising that there was a real risk or possibility that Vincencia Mundida might not have consented to it. He was sentenced to 14 years imprisonment of which 4 years imprisonment was suspended for 5 years on the usual condition of future good behaviour.</p> <p>            Appellant noted an appeal on 15 October 2019 and outlined grounds of appeal against conviction as follows:</p> <p>            “Ad Conviction</p> <p>           </p> <ol> <li>The court <em>a quo</em> grossly misdirected itself at law by convicting the appellant in circumstances where Appellant’s guilt had not been proved beyond reasonable doubt given Appellant’s defence that the sexual intercourse was by consent.</li> </ol> <p> </p> <ol> <li>The court <em>a quo</em> grossly misdirected itself at law by convicting the Appellant of rape in circumstances where the report was not made freely and voluntarily.”</li> </ol> <p> </p> <p>Background </p> <p>            Appellant was aged 33 years and employed as a soldier stationed at All Arms Battle School, Nyanga. Complainant was aged 30 years and appellant was her ex-husband although the marriage was not registered. During the time they were still together appellant borrowed US$470-00 of which he made part payment back leaving a balance of US$270-00. On 26 January 2019 appellant invited complainant to his house so that she could collect her money. On 28 January 2019 complainant proceeded to the appellant’s house and found appellant out. She waited for his return. Appellant later on that day arrived home at around 2300hrs and he invited the complainant into his bedroom to collect the balance outstanding to her. Whilst in the bedroom appellant attempted to fondle complainant’s breast but complainant told him that she did not like that. Appellant did not relent, he forcibly made complainant to lie on the bed on her back. The complainant tried to scream for aid but appellant closed the complainant’s mouth using his palm and went on to press her down. The appellant overpowered the complainant and pulled her dress up, tore her pant and forcibly had sexual intercourse with her once without her consent. After the rape complainant and the appellant slept on the same bed overnight. On 29 January 2019 that is the following morning the complainant reported the matter to ZRP Nyanga Police leading to the appellant’s arrest.             </p> <p>            In his defence outline appellant’s version is that on the fateful day when complainant arrived at appellant’s house from Harare, the two proceeded to appellant’s bedroom. The complainant initiated and agreed to have sexual intercourse, however, before the intercourse the complainant bathed her private parts. After the sexual intercourse they both retired on the same bed sharing same blankets. Appellant denied forcing himself upon the complainant, according to the appellant, complainant participated in the sexual intercourse holding the appellant’s body tightly. Appellant was surprised to hear rape allegations.</p> <p>            The question for determination by the court is whether the sexual intercourse between the parties was consensual. Secondly whether complainant did not freely and voluntarily report the matter?</p> <p>            It is necessary to look at the evidence of the complainant. On 29 January 2019 complainant does not deny going into the appellant’s bedroom but did so upon the invitation of the appellant who had invited her there to collect the balance. Complainant told appellant that she intended to board the 12 midnight bus for Harare but the appellant dissuaded her. Appellant tried to fondle complainant’s breasts and she protested. Appellant proposed to use condoms but complainant told appellant that condoms or no condoms she was not interested in the sexual adventure with the appellant. Appellant got up from the bed, procured a condom from the wardrobe and returned to where complainant was seated, still complainant clearly told appellant that she did not want. Appellant locked the bedroom, when the complainant was about to get up, appellant pushed her onto the bed, she fell on her back, and appellant got onto her top. She screamed, appellant gagged her, pressed the right leg, got between her legs took a pillow and placed it between complainant and himself and then tore complainant’s pant on the left side and raped her.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> All this was uncontroverted evidence and the court <em>a quo</em> held the complainant a credible witness.</p> <p>            On the following morning she managed to escape from the appellant’s house when he visited the toilet. She texted appellant’s young brother on his mobile phone, she also informed the appellant’s younger brother’s wife. She made a further report to her elder sister and her husband and then went to the police. At the police she intimated that she initially did not want to report the matter but she had resolved to do so. She also admitted that aspect on the date of trial but insisted that she did not consent to the sexual act.  </p> <p>            The appellant submitted that the complainant was advised by the police that she will not be assisted unless she has made a police report. Would one then say that report was not freely and voluntarily made? On her way to the police station to make a report about the rape, she told four different people, her sister and husband, appellant’s brother and his wife informing them about the abuse. Those were the first complaints consistent with the absence of consensual intercourse. Why would complainant sneak out of appellant’s house to go and lodge a complaint of rape? From the evidence of complainant whilst in the bedroom of the appellant it was apparent that she was not cooperating with the appellant’s desire to have sex with her. She did so both through body conduct and verbally, appellant ought to have realised that the complainant was not willing to engage with appellant in the sexual act. We are satisfied that the sexual complaints were freely and voluntarily made. It was made without undue delay and made to close contacts to the complainant and accused. Complainant’s evidence of what transpired is clear. Previous concession when appellant had an affair with her cannot be said to have been given for future uncontemplated violation. The complainant on the day in question did not consent to sexual intercourse.</p> <p>            The court <em>a quo</em> dealt with the aspect of complainant’s credibility exhaustively and we see no legal basis to interfere with her findings on the aspect of credibility. The conviction is proper in our view and the appeal against conviction has no merit.</p> <p>            The appeal is dismissed.</p> <p> </p> <p>  MUZENDA J agrees ________________</p> <p> </p> <p><em>Mupindu Legal Practitioners,</em> appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Pages 34-38 of the record of proceedings.</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/mutare-high-court/2020/28/2020-zwmthc-28.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27400">2020-zwmthc-28.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/mutare-high-court/2020/28/2020-zwmthc-28.pdf" type="application/pdf; length=327090">2020-zwmthc-28.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></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> Tue, 07 Jul 2020 08:32:29 +0000 Sandra 9757 at https://old.zimlii.org S v Sakawa (HH 262-20) [2020] ZWHHC 262 (09 April 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/262 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>POTIFA SAWAKA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI &amp; CHINAMORA JJ</p> <p>HARARE, 9 April 2020</p> <p> </p> <p> </p> <p><strong>Chamber application for condonation of late noting of appeal</strong></p> <p> </p> <p>Applicant in person</p> <p><em>W. Badalane</em>, for the respondent</p> <p> </p> <p> </p> <p>            CHITAPI J: The applicant together with his two co-accused were convicted of stock theft as defined in terms of s 114 of the Criminal Law Codification and Reform Act, [<em>Chapter 9:23</em>] by the Magistrate at Chinhoyi Court on 28 July 2017. On 31 July 2017, he was sentenced similarly with his co accused to the mandatory minimum period of 9 years imprisonment following a finding by the court that there were no special circumstances to warrant the imposition of a lesser penalty. The record does not indicate that the applicant was advised of the right to appeal or that the proceedings would be referred for review and the import or essence thereof. The applicant and his co-accused were not legally represented at their trial.</p> <p>            I will briefly discuss the general duty of magistrates to advise the convicted person of the rights to appeal and the process of review. In this regard, the legislature must be commended for enacting s 163 A of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>] in 2016. In terms of the provisions of s 163A aforesaid, the magistrate in any trial in the Magistrates Court must, before calling an unrepresented accused to plead to a charge, inform such accused of the accused’s rights to legal representation or other representation as set out in s 191 of the same Act. The fact of the magistrate having informed the accused of such rights and the accused’s response must be recorded. In this case, the magistrate did not comply with the peremptory provisions of s 163A and it will be demonstrated later in what ways there was non-compliance.</p> <p>            As already noted, s 163A deals with pre-trial duties of the magistrate. As regards post-conviction rights, there does not appear to be in existence a similar provision suffering a magistrate to inform the convicted hitherto unrepresented accused person of his right to appeal or to explain the process of review to the convict let alone to record such explanation and the convict’s response thereto. It is however refreshing to note that some magistrates do in fact record that the convict has been advised of his rights to appeal as well as that he or she has been advised that the record of proceedings will be forwarded to the High Court for review by a judge of this court within 7 days of sentence as provided in the Magistrates Court Act, [<em>Chapter 7:10</em>].</p> <p>            It has become trite that there is a duty upon judicial officers to inform the accused person of his or her legal right. The fact that the legislature has specifically picked upon the right to legal representation by enacting s 163A as noted does not remove the duty of the judicial officer to inform the accused person or convict of such persons legal rights of taking up the matter further following judgment and sentence of such person’s legal rights. In regard to the duties of the judicial officer as aforesaid, there has been a lot of focus and emphasis on the duty of the court towards an unrepresented accused person in pleas of guilty proceedings in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act, see <em>S </em>v <em>Bvuto </em>HH 94/18 and a plethora of cases cited and ably discussed therein by Hungwe J (as then he was).</p> <p>            It is important to appreciate that the unrepresented accused upon conviction and sentence still remains unrepresented. The convict still requires to be assisted to pursue his rights post-conviction. The old adage, “information is power” rings true. Information or knowledge aids decision making. Section 70 (5) of the Constitution provides that-</p> <p>“(5) Any person who has been tried and convicted of an offence has the right subject to reasonable restrictions that may be prescribed by law, to</p> <ol> <li>Have the case reviewed by a higher court, or</li> <li>Appeal to a higher court against the conviction and sentence.”</li> </ol> <p> </p> <p>Related to the above constitutional provisions are sections 57 as read with s 59 and also s 60 of the Magistrates Court Act, [<em>Chapter 7:10</em>]. Section 57 provides for automatic review of magistrates court proceedings where the accused has been convicted and sentenced to the threshold of punishment set out therein. Significantly, s 59 provides as follows-</p> <p>“<strong>59 Accused’s right to submit a statement on review</strong></p> <p>In any criminal case which is subject of review in terms of s 57 the accused person may, if he thinks the sentence passed upon him is excessive deliver to the Clerk of Court within three days of the date of such sentence any written statements of arguments setting out the grounds or reasons upon which he considers such sentence excessive, which statement or arguments shall be forwarded with the proceedings of the case to the necessary judge and shall be taken into account in the review of proceedings.”</p> <p> </p> <p>Section 60 provides for the convicts rights of appeal to the High Court against “the</p> <p>conviction, and additionally or alternatively any sentence or order of the court following upon conviction.”</p> <p>            Related to s 70 (5) as aforesaid is s 44 of the Constitution which provides as follows—</p> <p>“<strong>Duty to respect fundamental human rights and freedoms</strong></p> <p>The State and every person, including juristic persons and every institution and agency of government at every level must respect, protect, promote and fulfil the rights and freedoms set out in this Chapter.”</p> <p> </p> <p>It follows from the provisions of s 44 of the Constitution that the court must take such steps</p> <p>as are sufficient to advance the rights of the convict as given in s 70 (5) of the Constitution. Therein lies the rationale or basis to hold that a judicial officer has a duty to assist the unrepresented convict by conscientising such convict of the convict’s rights on review as given in ss 57 and 59 of the Magistrates Court Act as well as rights of appeal as given in s 60. The constitution has heralded a new order where the Bill of Rights has been expanded. The Bill of Rights exists to safeguard and enhance people’s rights and freedoms. Courts must as constitutionally mandated, play their role to ensure the enjoyment by all persons of the rights which are provided for.</p> <p>            Lest that I am misunderstood in advocating that courts should be proactive in advancing the fundamental; rights and freedoms as provided for in Chapter 4 of the Constitution generally and by s 70 (5) in particular, I am by no means suggesting that the court must turn into legal advisor for the accused or convict. I would in this regard, quote the words of DIDCATT J, in <em>S</em> v <em>Khanyile and Anor</em> 1988 (3) SA 795 (N) at 798, when in commenting on the guidance which the magistrate should provide to an unrepresented accused, quoted from the journal <em>Acta Juridica</em> (1965-66) at p 70 as follows—</p> <p>“Of all false and foolish <em>dicta</em>, the most trite and the most absurd is that which asserts that the judge is counsel for the prisoner. The judge cannot be counsel for the prisoner, ought not to be counsel for the prisoner, never is counsel for the prisoner.”</p> <p> </p> <p>I am in agreement with the above <em>dicta</em>. The judicial duty should therefore be limited to advising the convict of the avenues available at law to pursue his rights post-conviction and not how to go about them. I therefore suggest that it is indeed a judicial function to advise an unrepresented convict. The magistrate must endorse that such rights have been explained and the convict’s response thereto. Apart from the practice being promotive of the convict’s constitutional rights as given in s 70 (5) of the constitution, it assists the superior court in matters which arise post-conviction as in the present application. It is also noted that in terms of s 46 (2) of the constitution as read with s 176 of the same, this court has a duty to develop the common law. In developing it and in relation to the Bill of Rights, the court is guided by the “spirit and objective of Chapter 4 of which s 70 (5) is part. The duty of the court to assist an unrepresented accused arises from common law. It is, in my view, proper to develop the common law by extending the duty to cover not just pretrial and trial scenarios but post-trial as well.</p> <p>            Reverting to the substance of this application, the discussion I have put across is relevant to the determination I will make. In an application for condonation of late noting of appeal and extension of time within which to appeal, the court considers various factors. The same principles are applicable irrespective of whether or not the appeal intended to be noted arises from criminal or civil proceedings. In <em>Vigour Busilizwe Fuyana</em> v <em>Ntombazana Moyo</em> SC 54/16 CHIDYAUSIKU CJ, set out the basic considerations as</p> <ol> <li>a reasonable explanation for failure to note the appeal within the prescribed period.</li> <li>Some prospects of success on the merits; and</li> <li>The <em>bona fides</em> of the application</li> </ol> <p>Other considerations would be, prejudice to the other party or respondent were the</p> <p>application to be granted (this would equally apply in civil cases) and the need to bring finality to proceedings. See <em>Florence Chimunda </em>v <em>Arnold Zimuto and Another</em> SC 76/14; <em>Tafadzwa Watson Mapfoche</em> v <em>S</em> HH 438/18; <em>S</em> v <em>Phiri </em>HH 121/18; <em>Wilfred Takaona Mapfumo</em> v <em>S</em> HH 564/16.</p> <p>            The approach to a condonation application is much the same in this jurisdiction as in South Africa. In this respect, in <em>Valentine Senkane</em> 2011 ZASCA 94, NAVSA JA stated in par 27 as follows—</p> <p>“It is now necessary to consider briefly the criteria to be applied in considering an application for condonation. In <em>Malane</em> v <em>Santamn Insurance Co Ltd</em> 1962 (4) SA 531 (A) this court in dealing with whether or not sufficient  cause had been show in terms of r 13 of the then Appellate Court Rules for condonation for non-compliance stated the following (at 532 C-F):</p> <p>‘In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piece meal approach incompatible with a true discretion, save of course that if there are no prospects of success, there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the respondent’s interests in finality must not be overlooked. See also <em>S</em> v <em>Mohlathe</em> 2000 (2) SACR 530 (SCA) para 9’.”</p> <p> </p> <p>28 In <em>S</em> v <em>Di Blasi</em> 1996 (1) SACR (A) at 3 F-G the following appears:</p> <p>‘The general approach of this court to applications of this kind is well established. (See, eg <em>Federated Employers Fire and General Insurance Co Ltd &amp; Anor</em> v <em>Makenzie</em> 1969 (3) SA 360 (A) at 362 F-H; <em>S</em> v <em>Adonis</em> 1982 (4) SA 901 (A) at 908 H – 909 A and <em>Ferreira</em> v <em>Ntshingila</em> 1990 (A) SA 271 (A) at 281 D-F). Relevant considerations include the degree of non-compliance, the explanation therefor, the prospects of success, the importance of the case, the respondent’s interest in the finality of the judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.’</p> <p>                       </p> <p>            In summary, therefore, what can be concluded upon a consideration of the cases I have cited is that the grant of condonation or its refusal is a matter of judicial discretion exercised judiciously upon a cumulative consideration of various factors as set out above. There is however the understanding that if the appeal or review proposed to be filed out of time does not enjoy prospects of success, condonation must be refused.</p> <p>            In <em>casu</em>, the applicant herein filed this application on 8 March 2019. The application is therefore being made almost 20 months post his sentence on 31 July 2017. The delay is substantial. The explanation which the applicant gives is that he had been promised by relatives that they would engage a legal practitioner to assist. The promise was not fulfilled. He stated that he was not aware that he could prosecute his appeal in person and only learnt that this was possible through consultations with other inmates. He also stated that he faced challenges in accessing the record of proceedings. From the prisons date stamp franked on the copy of the record filed with this application, the record was received at prison reception for transmission to the applicant on 4 March 2019. The application was filed 4 days after receipt of the record. The applicant did not state the date that he requested for the record. That omission notwithstanding, it must be accepted as fact that when a convict is incarcerated, his freedom to maneuver around and even communicate with the registrar and clerk of court, as the case may be, for purposes of making arrangements for preparation of the court record is very much curtailed. The convict relies on prison authorities and benefactors outside of prison, the latter whose access to the convict is governed by prison regulations. Access is not granted on an open ticket.</p> <p>            Whilst I fully subscribe to the position that it is incumbent upon litigants who wish to bring their cases before the court to follow or comply with the relevant rules of court, I would hold that the peculiar circumstances of a convict who wishes to pursue his rights on appeal or review to the appropriate court must be considered when the judge considers an application for condonation of late noting of appeal. Prisons do not have in house advocates who provide expert guidance and procedures to follow to bring a case on review or appeal. This is an area where the powers that be should consider visiting. The absence of proper legal aid for indigent convicts who cannot afford to engage legal practitioners is a worrisome phenomenon, because after conviction, the processes which are available to the convict to take, being appeals and reviews, are specialized areas where legal expertise is necessary. The provision of legal aid at this stage should ideally be provided as a matter of course. The advantage of legal representation post-conviction lies in that a convict is informed at this early stage whether there is any point in appealing or seeking a review or to just accept his or her fate. What happens presently is that appeals and reviews by self-actors are filed as a matter of course. Underserved and unmeritorious appeals and review applications which would not otherwise have been filed had the unrepresented convict received legal advice, congest the court system unnecessarily. There is therefore no doubt, in my view, that there is great need for reform in this area. For example in all criminal trials in the High Court, <em>pro deo </em>counsel is provided to the accused. The representation ends there and the accused’s right to legal representation on a <em>pro deo</em> basis does not extend to appeals and reviews. This area requires reform too.</p> <p>            Reverting again to the application for condonation, it is a requirement of the law, <em>inter-alia, </em>that an applicant’s proposed appeal has prospects of success. This requirement is most determinant. I have already indicated that the rest of the  requirements are no less important. When the lower court record of proceedings is considered in whole, it is clear therefrom, as I have pointed out, that the magistrate did not comply with the requirements of s 163A of the Criminal Procedure &amp; Evidence Act.</p> <p>            Upon the applicant’s appearance for trial before the learned magistrate the following is recorded</p> <p>            “17 July 2017</p> <p>            Before Rwodzi</p> <p>            Public Prosecutor Chirambiwa</p> <p>            Interpreter Matiya</p> <p>            All accused persons in person</p> <p>            Charge read and understood</p> <p>            P A1 NG</p> <p>            A2 NG</p> <p>            A3 NG</p> <p>            Facts read and understood</p> <p>            S/O Annexure “A”</p> <p>            Provisions of s 188/189 of Code explained and understood.”</p> <p> </p> <p>            Thereafter, the accused persons, of which the applicant was first accused, gave defence outlines and the trial was conducted and concluded without the accused having been advised of their right to legal representation contrary to s 163A. The question which arises is what the effect of the failure to follow the procedure set out in s 163A is and whether such failure can be condoned. I think not. Section 163A complements the principle of our law that the accused is entitled to a fair trial. The right to a fair trial or hearing is entrenched in s 69 (1) and (4) of the constitution which reads as follows:</p> <p>            “<strong>69 Right to fair hearing</strong></p> <ol> <li>Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court</li> <li>- - -</li> <li>- - -</li> <li>Every person has a right, at their own expense to choose and be represented by a legal practitioner before any court, tribunal or forum.”</li> </ol> <p>           </p> <p>            The right to legal representation is logically intertwined with the right to a fair trial. The trial procedure in this jurisdiction is adversarial, which means that the accused is pitted against the State represented by a legally qualified and or experienced prosecutor. The two, that is the prosecutor and the accused seek to outdo each other with the magistrate as impartial arbiter. Therefore, since the self-acting accused is invariably ignorant of court procedure, he or she should not fall victim to the ignorance which may prejudice him or her. The prosecutor is legally trained in the job. The accused must, therefore, be promptly and properly informed of his or her right to legal representation by counsel of choice and at own expense and be afforded a reasonable period to secure it.  It often happens that an accused will just waive the right, not because the accused does not want to be legally represented, but because the accused is indigent and cannot afford legal representation. The magistracy as a general guide should take time to explain the import and purport of the rights especially in serious cases, like the charge which the applicant was facing herein.  The court must bear in mind the minimum sentence of 9 years provided for upon conviction it the accused fails to satisfy the court of the existence of special circumstances warranting the court to impose a sentence below the mandatory minimum sentence.</p> <p>            In <em>S</em> v <em>Bvuto</em> HH 94/18, HUNGWE &amp; MUSHORE JJ sat on appeal against convictions of 9 appellants on their guilty pleas to contravening s 368 of the Mines &amp; Minerals Act [<em>Chapter 21:05</em>] which attracts a mandatory minimum sentence of 2 years in the absence of the accused showing special circumstances.  The learned judges emphasized that magistrates dealing with unrepresented accused persons must act as the “primary bulwark defending the ignorant or the impoverished against the potential injustice that could visit the process.” The court made reference to <em>S</em> v <em>Tau</em> 1997 (1) ZLR 93 (H) at p 99 and postulated that it was high time that given the new thrust of giving prominence to the promotion of the rights given in the declaration of rights.  They stated that the legislature should consider providing for state assisted legal representation for accused persons facing serious charges including those which provide for mandatory minimum sentences as of right if the accused cannot afford to pay for legal representation. Although the case of <em>Bvuto</em> was an appeal where proceedings which the court interrogated as mentioned arose from a guilty plea procedure, the observations made are apposite. This is because in enacting s 163A, the legislature, in effect, recognized that the magistrates were the bulwark of conscientising the ignorant accused and imposed upon them to duty to appraise of, and accord, the accused the right to legal representation before commencing a trial in the magistrates court.</p> <p>The applicant herein also filed an application for bail pending the determination of his application for condonation of late noting of appeal under case No. B 1761/19. Since the application   for condonation was still pending determination, it became expedient to deal with both applications at the same time. I drew the attention of State counsel Miss <em>Badalane</em> to the apparent omission by the trial magistrate to explain to the accused his right to legal representation as required by s 163A of the Criminal Procedure &amp; Evidence Act as aforesaid. I also requested that counsel should make her input on this issue in writing. Counsel dutifully did so. In a written response counsel conceded the omission by the trial magistrate to comply with s 163A. Counsel averred as follows in the material part:</p> <p>STATE RESPONSE</p> <p>“1. The applicant made an application for bail pending the determination of his application for condonation.</p> <ol> <li>Upon making his submissions for bail pending appeal, an issue was raised that the right to legal representation was not explained in terms of s 191 of the Criminal Procedure &amp; Evidence Act [<em>Chapter 9:07</em>]. There is nowhere in the record where it shows that the learned magistrate explained this right to the applicant as is expected by s 163A of the aforementioned Act.</li> <li>Now, it is important to assess the impact of the failure by the magistrate to explain this important right to an unrepresented accused who may decide to represent himself by pleading guilty. The most important question is on whether the failure to explain such an important constitutional right results in a gross miscarriage of justice or not. If it does, then this court is enjoined to exercise its powers in terms of s 26 of the High Court Act and review the proceedings of the lower court with regard to the question on whether any gross miscarriage has been occasioned by the misdirection by the magistrate.</li> <li>It is submitted that the respondent is not opposed to the matter being dealt with on review.”</li> </ol> <p>            As evident from the State counsel’s response, the State acceded to the disposal of the matter by way of a review. In terms of s 29 (4) of the High Court Act, the powers of review which a judge is given, may be exercised. “Whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not subject of an application to the High Court and have not been submitted to the High Court or the judge for review.”</p> <p>            The import of the provisions of s 29 (4), aforesaid, is simply to promote and extend the supervisory role and review powers of the High Court over the Magistrates Court proceedings. In particular, such powers cover situations where despite the proceedings not being subject of a pending application for review or are otherwise not before the court for review, it comes to the notice of the High Court or judge of the High Court that criminal proceedings in any inferior court or tribunal are not in accordance with real and substantial justice.</p> <p>            In the response by State counsel, Miss <em>Badalane</em> submitted that the issue to be decided on review is whether the failure by the court to explain to the accused, the right to legal representation resulted in a miscarriage of justice. Counsel did not express her opinion on the question and in that regard was not assistive. The provisions of s 163A are peremptory and not directory. A failure to comply with the peremptory provisions amounts to a gross irregularity in the proceedings as envisaged in s 26 (1) (c) of the High Court Act [<em>Chapter 9:06</em>]. This is so because the peremptory provisions statutorily define trial procedure. A purported trial carried out other than in compliance with the peremptory procedural steps cannot qualify to be a trial as envisaged by statute. It becomes some kind of trial not sanctioned by the law. It cannot be sanitized. In my considered judgment, a trial which does not comply with the statute which defines how the trial must be conducted renders the trial a nullity and for that reason a nullity begets a nullity. The infamous judgment of Lord Denning in <em>Macfoy</em> v <em>United African Company Ltd</em> (1961) 3 WLR (PC) 1405 at 1409 comes to mind where the learned judge stated; “you cannot put something on nothing and expect it to stay there. It will collapse.”  See also <em>Manning v Manning</em> 1986 (2) ZLR 1 (SC).</p> <p>            I have considered the provisions of s 29 (3) of the High Court Act, which provide as follows</p> <p>“(3)      No conviction or sentence shall be quashed or set aside in terms of subsection (2) by reason of any irregularity or defect in the record of proceedings unless the High Court or a judge, thereof, or as the case may be, considers that a substantial miscarriage of justice has actually occurred.”</p> <p> </p> <p>The above provisions must read in context. I do not read the provisions as intended to sanitize a mistrial. Certainly if a mistrial was to be sanitized by reliance on the above provisions then this would amount to an affront to the rule of law by law. Even if my reasoning is faulty, one would still have to contend with the constitutional provisions in s 69 (1) which guarantees the right to a fair and public trial and s 86 (3) (e) which provides that no law may limit the rights to a fair trial. Thus, where jurisdiction has not been properly exercised by the magistrate by reason of an omission to comply with the statutorily regulated procedure for conducting a criminal trial, then the proceedings must be set aside as a nullity and/or as not being in accordance with real and substantial justice. The invocation of the provisions of subsection 3 of s 29 would not arise in circumstances where there has been conducted what amounts to a sham trial. Even then, a substantial miscarriage of justice arises as a matter of law were the factual scenario is that a trial has been conducted in violation of statutorily legislated trial procedures.</p> <p>In the recent review judgment by DUBE-BANDA J in the case of <em>State</em> v <em>Zvidzai Manetaneta</em> HH 185/20 in which I concurred, the accused was charged with contravening s 368 (1) of the Mines &amp; Minerals Act [<em>Chapter 21:05</em>]. It was alleged that he prospected for gold without a permit or a licence issued for the purpose in terms of the Act. In terms of s 368 (4) the offence carries a mandatory minimum sentence of 2 years imprisonment if the accused fails to satisfy the court on the existence of special circumstances. The record of proceedings showed that the case was disposed of upon a guilty plea in terms of s 271 (2) (b) of the Criminal Procedure &amp; Evidence Act. The learned magistrate did not comply with the provisions of s 163A (1) as read with s 191 of the same Act more particularly in that the accused was not advised of his right to legal representation. The following is stated on p 2 of the cyclostyled judgment—</p> <p>“By operation of s 163A (1) as read with 191 of the Criminal Procedure &amp; Evidence Act, at the commencement of the trial an accused must be informed by the court of his right to legal representation. The magistrate shall record the fact that the accused has been informed of such right and his response thereto recorded. This is a right of substance, not form, and it is the cornerstone of a fair trial. In my view, the starting point in determining the fairness of a trial as envisaged in s 69 (1) of the Constitution, should always be whether or not the accused is informed of his right to legal representation. He must be properly informed, and his answers recorded so that if there is a waiver of such right, it would be an informed one.</p> <p> </p> <p>The enquiry is whether the failure to inform the accused of his constitutional right to legal representation is an irregularity so fundamental and serious to the extent that it can be regarded as fatal to the proceedings in which it occurred. I am of the view that the failure to inform the accused of this right amounts to an irregular or illegal departure from those formalities, rules or procedure in accordance with which the law requires a criminal trial to be initiated and conducted, and that such irregularity is fatal to the proceedings. It is an irregularity so fundamental that the court must set aside the conviction without reference to the merits and leave the issue to the Prosecutor General to decide whether the accused should be retried.</p> <p> </p> <p>In conclusion, the failure by a trial court to inform the accused of his constitutional right to legal representation is an irregularity that is fatal to the proceedings…</p> <p>           </p> <p>The Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (Constitution) guarantees every accused person the right to a fair trial. This includes the right to legal representation. The right enacted in s 163A of Criminal Procedure &amp; Evidence Act is procedural. The substantive right is located in s 69 of the Constitution which provides that every person has a right at their own expense to choose and be represented by a legal practitioners before any court, tribunal or forum. Therefore, the right to legal representation is a peremptory requirement.”</p> <p>            I have already indicated that in the aforesaid judgment DUBE-BANDA J sought my concurrence and I was in agreement that the learned judge had captured and interpreted the provisions of s 163A as aforesaid correctly and with remarkable simplicity and eloquence. In regard to the disposal of that case, the conviction was quashed and the matter left to the Prosecutor General in his discretion to have the accused arraigned on a fresh trial, with the order that in the event of a conviction, the sentence already served should count towards any sentence which may be imposed.</p> <p>            The circumstances of this case before me are on all fours with the circumstances which DUBE-BANDA J was faced with save for the fact that the <em>Zvidzai Manetaneta</em> case was disposed of by plea procedure and the charge was a contravention of the Mines and Minerals Act. In <em>casu,</em> the matter proceeded to full trial and the charge was stock theft. The distinguishing features which I have pointed out to do not change the position in that the peremptory provisions of s 163A (1) must be applied irrespective of the fact that the proceedings have been dealt with on plea or contested trial. In the case of <em>S</em> v <em>Sikhipa</em> 2006 (2) SACR 439 (SCA) 443 para 10 the Supreme Court of South Africa went a rung further by holding that where the accused was facing a serious charge, the court should not just inform him of his right to legal representation, but should encourage the accused to seek it. The learned judge LEWIS JA stated as follows in paragraph 10 of the judgment:</p> <p>“It should be said, however that where an accused is faced with a charge as serious as that of rape, and especially where he faces a sentence of life imprisonment, he should not only be advised of his right to a legal representative but should be encouraged to employ one and to seek legal aid where necessary. It is not desirable for the trial court in such cases to merely appraise an accused of his rights and to record this in notes: the court should, at the outset of the trail ensure that the accused is fully informed of his rights and that he understands them and should encourage the accused to appoint a legal representative explaining that legal aid is available to an indigent accused.”</p> <p> </p> <p>            I cannot help but be impressed by such a progressive pronouncement by the learned appeal court judge. In my view, the magistracy in this jurisdiction should follow the above approach. It is consistent with the court’s duty to promote and fulfil the accused’s right to a fair trial. The duty to safeguard fundamental human rights and freedoms is reposed in every person, living or juristic and all institutions and agencies of Government. The courts must stand out as the last bastion or defender against human rights violations. Indeed, s 164 of the constitution entrenches the independence of courts which are made subject only to the constitution and the law. Therefore, in the application of the law, courts must do so impartially, expeditiously without fear, favour or prejudice.</p> <p>            It is also refreshing to note that this court has not been found wanting in relation to discharging its duty to promote, protect and fulfil the fundamental right of the accused person to legal representation. In this regard, in the case of <em>Bvuto (supra</em>) the following appears <em>per</em> HUNGWE J (as he then was) a p 7 of the cyclostyled judgment:</p> <p>“Clearly, the appellants right to a fair hearing were prejudiced by the approach the trial court adopted ---. In all offences for which a minimum mandatory sentence is prescribed, it is an infringement for a trial court to fail to advise an unrepresented accused person of his or her right to legal representation, at his own expense, by a legal practitioner of his choice, or if he cannot afford one to be represented by a legal practitioner assigned by the State at the States expense if substantial injustice would otherwise occur. Section 70 (1) (d) and (e) of the Constitution of Zimbabwe. These rights are entrenched for the obvious reason, to protect, to promote, to uphold and to ensure the realization of the accused’s fair trial rights.”</p> <p> </p> <p>The learned judge again went a step further to suggest that it was high time that the law</p> <p>maker should consider enacting appropriate legislation which entitles every suspect standing trial on a charge which is punishable upon conviction by the imposition of a mandatory penalty to be accorded legal representation at the State’s expense. This of cause is an eminently noble idea. It may however be unnecessary that such separate legislation be enacted because s 70 (1) (e) of the constitution already provides for the right to legal representation at the State expense being accorded to an unrepresented accused person where, in the opinion of the court, substantial injustice may accrue if the accused is not legally represented.  Indeed, the legislature has not been wanting in this regard because it enacted the Legal Aid Act [<em>Chapter 7:16</em>] which establishes the Legal Aid Directorate.  Section 10 of that Act provides as follows:</p> <p><strong>“10 Legal aid at instance of court or Prosecutor-General</strong></p> <p>(1) If it appears to a judge or magistrate or to the Prosecutor-General that—</p> <p>     (<em>a</em>) it is desirable in the interests of justice that legal aid should be provided to a person who is or</p> <p>           will be a party to any civil or criminal proceedings before the Supreme Court, the High Court or</p> <p>           a magistrate court, as the case may be; and</p> <p> </p> <p>     (<em>b</em>) the person may have insufficient means to obtain the services of a legal practitioner on his own</p> <p>          account; the judge or magistrate or the Prosecutor-General, as the case may be, may recommend</p> <p>          to the Director that the person should be provided with legal aid and, where the State is or will be</p> <p>          a party to the proceedings concerned, may recommend that a legal practitioner in private practice</p> <p>          be engaged in terms of section <em>twelve</em>.</p> <p> </p> <p> (2) Where a recommendation has been made to him in terms of subsection (1), the Director shall</p> <p>       forthwith assess the means of the person concerned and, if he is satisfied that—</p> <p> </p> <ol> <li>the person has insufficient means to obtain the services of a legal practitioner on his own account; and</li> <li>the resources of the Legal Aid Fund will be sufficient to provide the legal aid required; he shall provide the person with legal aid.”</li> </ol> <p> </p> <p>The position therefore is that, there is an enabling law in place for provision of legal aid. The judges, magistrates and the Prosecutor-General should in appropriate cases invoke their powers to recommend State funded legal aid in terms of the quoted section.  If any suggestion can be made to the legislature, my respectful view is that it would be in relation to providing sufficient resources for this important state institution, the Legal Aid Directorate to function effectively.</p> <p>            In conclusion therefore, it will be noted that I have had to discuss in some depth the subject of legal representation as a fundamental human right to be promoted, protected and fulfilled in the hope that going forward the magistracy may appreciate the importance of strictly complying with the peremptory constitutional and other legislative instruments on the conduct of a trial in the magistrate court.  A failure to comply with s 163A (1) of the Criminal Procedure Evidence, renders ensuing proceedings a nullity.  The resultant consequence, which is undesirable but unavoidable, is the that proceedings in question stand to be quashed and set aside.  A guilty accused is released and a re-trial likely ordered (sometimes not, if for example, the sentence imposed on the abortive proceedings has almost been fully served or the case is too old).  The retrial means extra work for the court and an additional expense on the State resources as witnesses would need to be subpoenaed and paid their expenses for attending.  Some witnesses may have passed on with the result that evidence is now lost and a re-trial would have to be shelved forever.  Therefore, it is unarguably important that s 163 A of the Criminal Procedure Evidence be studiously followed in its letter and spirit.</p> <p>In regard to the disposal of the applications made by the applicant, they must of necessity fall away as the main matter has been disposed of by way of review in terms of s 29 (4) of the High Court Act with the Prosecutor-General being agreeable to such a course.  I therefore make the following order:</p> <ol> <li> The proceedings in case number DRW 78-80/17 are quashed and set aside as they were conducted irregularly on account of the failure or omission by the trial magistrate to comply with the peremptory provisions of s 163A (1) of the Criminal Procedure Evidence Act, [<em>Chapter 9.07</em>].</li> <li>The applicant is entitled to his immediate release from custody. The release order and quashing of the conviction and sentence covers the applicant’s co-accused persons Tawanda Chikohora and Munyaradzi Katepura.</li> <li>The Prosecutor General retains this prerogative to cause the applicant and his co-accused to be tried afresh. If a new prosecution is instituted:</li> </ol> <ol> <li> A different magistrate should preside over the trial.</li> <li>The period of imprisonment served by the applicant and his co-accused up to the date of their release by virtue of this judgment should be factored into any sentence that the three may be sentenced to in the event that convictions ensue and terms of imprisonment are imposed.</li> </ol> <ol> <li>This order disposes of case numbers CON 62/19 and B 1761/19 and copy of the judgment shall be filed in B 1761/19.</li> <li>A copy of this judgment be availed to the chief magistrate to bring the same to the attention of all magistrates to appreciate and note the requirement to comply with s 163A (1) of the Criminal Procedure &amp; Evidence Act and to appreciate the consequences of an omission to strictly comply therewith.</li> </ol> <p> </p> <p>CHINAMORA J ……………………………………I agree</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/harare-high-court/2020/262/2020-zwhhc-262.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40570">2020-zwhhc-262.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/2020/262/2020-zwhhc-262.pdf" type="application/pdf; length=562876">2020-zwhhc-262.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/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/right-appeal-0">right of appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lapsing">Lapsing of</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/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/trial">Trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/legal-representation-trial">legal representation in trial</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unrepresented-accused-trial">unrepresented accused in trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-statutory-offences">CRIMINAL PROCEDURE (SENTENCE) Statutory offences</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stock-theft-sentence-statutory">Stock theft (Sentence; Statutory)</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/2017/94-0">S v Bvuto (HH 94-18, CA 156/16 Ref CRB MSH 32-40/16) [2018] ZWHHC 94 (03 August 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2006/54">Fuyana v Moyo ( 236/00) (( 236/00)) [2006] ZWSC 54 (29 November 2006);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/76">Chimunda v Zimuto &amp; Another (SC 361/05) [2014] ZWSC 76 (29 September 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 class="field-item even"><a href="/zw/legislation/act/1931/18">Magistrates Court Act [Chapter 7:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 04 Jun 2020 10:32:14 +0000 Sandra 9630 at https://old.zimlii.org S v Manwere (HMT 5-20, CA 47-19) [2020] ZWMTHC 5 (28 November 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/5-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>TELLMORE MANWERE</p> <p>and</p> <p>SEBASTINE TANAKA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>                                                                                                                       </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA and MUZENDA JJ</p> <p>MUTARE, 16 October 2019 and 28 November 2019</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p><em>J Mangwende</em>, for the Appellants</p> <p>Mrs <em>J Matsikidze</em>, for the Respondent</p> <p> </p> <p> </p> <p>MWAYERA J: The appellant was convicted and sentenced for contravention of s 78 (1) of the Forest Act [<em>Chapter 19:05</em>]. The appellants were convicted of having removed 32 gum trees by cutting them down unlawfully and without authority from Forestry Commission of Zimbabwe. The appellants were sentenced to 24 months imprisonment of which 4 months imprisonment were suspended on condition of restitution of the complainant. Aggrieved by both conviction and sentence both the appellants lodged the present appeal with this court.</p> <p>The respondent partly opposed the appeal in that it conceded the sentence imposed was unduly harsh, whilst it opposed the appeal against conviction. The appellants raised grounds of appeal as follows:</p> <p>“Add Conviction</p> <ol> <li>The trial Court erred in disregarding the fact that there was no evidence linking the accused person to the cutting of the trees.</li> <li>The trial Court erred in disregarding the fact that there was no evidence showing any transport system to ferry the logs from the alleged crime scene.</li> <li>The trial Court erred in placing credence in witness evidence of Artwell who had a peculiar interest to safe guard his job by ensuring that anyone was charged and convicted as the trees has been cut under his watch.</li> <li>The trial Court erred in accepting that the Appellants were the persons who cut down the trees whilst not giving due weight to the fact that no tool, cart or any material was discovered that had been used in the commission of the alleged crime.</li> <li>The trial Court erred by finding the accused persons guilty based only on circumstantial evidence.</li> <li>The trial Magistrate erred by ignoring evidence which tended to be in favour of the accused person.”</li> </ol> <p> </p> <p>“Add Sentence</p> <ol> <li>The trial Court erred by failing to give due weight to the following mitigatory factors which would have resulted in a lessor sentence….”</li> </ol> <p>The brief facts informing the charge are that both accused persons on 10 February 2019, cut down gum trees and hid the poles in their village. The appellants were seen by Artwell Mushowe who then laid an ambush for the appellants. The accused later came to collect the poles and as they tied the poles for collection they were intercepted and then arrested. It is clear from the grounds of appeal against conviction that the appellants are questioning the finding of the court and its reliance on the witness evidence.</p> <p>It is apparent in this case that gum poles were removed from the forest and that both appellants were apprehended at or close to the pile while tying the poles. The court <em>a quo</em> had to decide on whether or not from the evidence adduced the State had discharged the required onus of proving the case beyond reasonable doubt. The court <em>a quo</em> did not hold the appellants’ explanations to be probable and reasonably possibly true given the evidence adduced by the State. The first appellant denied all allegations pointing out his attention was drawn to the scene by people talking. The second appellant denied saying the poles were not at his residence and that on the day in question he was with his wife.</p> <p>The findings of the court <em>a quo</em> were based on credibility. The court was impressed by the State witnesses and not appellants. It is settled that credibility or otherwise of witnesses is a domain of the trial court. The findings of fact are not lightly interfered with. It is only when the factual findings are at variance with the facts on record that the appellate court can interfere with the findings of the trier of fact who for the obvious reasons has the opportunity to hear, observe and assess the witnesses.</p> <p>The main witness Artwell Mushowe gave clear evidence of how the appellants were found in the vicinity of the stolen poles securing same for purposes of ferrying the poles away. The appellants themselves do not dispute being in the vicinity of the stolen poles. The witness was well known to both appellants and as such no question of mistaken identity. In fact at the time of arrest the witness conversed with the appellants who were apologetic. It is also on record that the witness and appellants enjoyed cordial relations hence the trial court found no reason why the witness would have falsely incriminated the appellants. That the witness Artwell Mushowe was a security guard cannot be held against him given the totality of evidence. The bare denials by the appellants and the fact that they were found bundling the poles for purposes of later ferrying supports the finding of the court <em>a quo</em>. The conviction was therefore well-founded on evidence anchored on the record. The findings of the court <em>a quo</em> on both facts and law can therefore not be faulted.</p> <p>Turning to the sentence imposed it is apparent the court <em>a quo</em> did not give due weight to the circumstances of the commission of the offence, mitigatory and aggravatory factors. Lip service was paid to the laid out sentencing principles of seeking to strike a balance between the offence and the offender while at the same time tempering justice with mercy.</p> <p>A reading of the penalty provision of the relevant charge provides for the option of a fine. It has been said on countless times by this court that to consider imprisonment were the penalty provision gives the option of a fine without cogent reasons is a misdirection. Imprisonment is a preserve for the very bad and serious cases not minor infractions. In casu both appellants were first offenders, family men with dependants. The value of the poles forming the subject of the offence was given as $320-00 most of which were recovered. The court opted for imprisonment of which no portion was suspended on conditions of good behaviour. There are no reasons recorded why first offenders were not granted the opportunity to have a suspended prison term act as a deterring factor. Punishment is not meant to break the individual but should be appropriately considered so as to have the positive effects of rehabilitating the offender.</p> <p>The reasons for sentence are devoid of the thought process of how the trial court discarded the other sentencing options namely a fine and or community service. To this end therefore the court <em>a quo</em> did not properly exercise its sentencing discretion. We are at large to interfere with the sentence which in the circumstances is viewed as unduly harsh. In the result the appeal against conviction is dismissed and the appeal against sentence is upheld</p> <p>Accordingly it is ordered that:</p> <ol> <li>The appeal against conviction is dismissed.</li> <li>The appeal against sentence succeeds. The sentence imposed by the court <em>a quo</em> is set aside and substituted as follows:</li> </ol> <p>Each accused is to pay a fine of RTGS$500-00 or in default of payment 3 months imprisonment. In addition 3 months imprisonment is suspended for 3 years on condition accused does not within that period commit any offence involving dishonesty for that he is sentenced to imprisonment without the option of a fine.</p> <p> </p> <p>MUZENDA J agrees_____________________</p> <p><em>Chiwanza &amp; Partners,</em> appellants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, State’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/mutare-high-court/2019/5/2020-zwmthc-5.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33531">2020-zwmthc-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/mutare-high-court/2019/5/2020-zwmthc-5.pdf" type="application/pdf; length=220308">2020-zwmthc-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/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-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-sentence">Review (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/theories-purpose-punishment">Theories of purpose of punishment</a></li></ul></span> Thu, 02 Apr 2020 09:05:50 +0000 Sandra 9606 at https://old.zimlii.org S v Nyamande (HMT 6-20, CA 79/19 Ref Case CRB MUTP 3423/19) [2020] ZWMTHC 6 (06 November 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/6 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>BOTHWELL TAURAI NYAMANDE</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA &amp; MUZENDA JJ</p> <p>MUTARE, 6 November 2019</p> <p> </p> <p> </p> <p><strong>Criminal Appeal (Reasons for Judgement)</strong></p> <p> </p> <p> </p> <p><em>C Ndlovu</em>, for the appellant</p> <p><em>M Musarurwa</em>, for the respondent</p> <p> </p> <p> </p> <p>            MUZENDA J: On 14 August 2019 the appellant appeared before the senior Magistrate sitting at Mutare facing a charge of Robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. The state alleged that on 13 August 2019 and Kale Church Federation, Dangamvura, Mutare, the appellant unlawfully and intentionally used violence and attempted to strike Tinashe Munyanyi on his hands with an axe and stole GTel X5 cell phone. The appellant who was not legally represented pleaded guilty, he was convicted and sentenced to 5 years imprisonment of which 1 year imprisonment was suspended for 5 years on the usual conditions of future good behaviour.</p> <p>            On 22 August 2019 the appellant noted an appeal against conviction and advanced two grounds of appeal which were spelt out as follows:</p> <p> </p> <p>Grounds of Appeal</p> <ol> <li>The learned trial magistrate erred and misdirected himself at law when he failed to fully and exhaustively canvass the essential elements of the offence with the appellant who was not legally represented and the conviction is not proper and in accordance with real and substantial justice.</li> <li>The learned trial magistrate erred and misdirected himself at law by failing to explain the gravity of the offence to the unrepresented appellant and to adequately inform him of his constitutional rights relating to legal representation.</li> </ol> <p>On the date of hearing the appeal, Mr <em>C Ndlovu</em>, who appeared on behalf of the appellant abandoned ground of appeal number two and chose to pursue the first ground. The state did not have problems with that and the withdrawal of that ground of appeal was allowed. Mr Ndlovu proceeded to attack the proceedings of the court <em>a quo</em> arguing that the trial court did not comprehensively and exhaustively put across to the appellant the essential elements of the offence of Robbery, moreso where the appellant was not legally represented. He went on to argue that the essential elements of robbery consists of theft of property by unlawful and intentional using of violence or threats of violence to induce submission to the taking of it from the person of another or in his/her presence. The threat of violence or the violence itself should sustain a charge of robbery or be intended by the perpetrator to induce or cause the owner of the property to relinquish his or her property.</p> <p>Mr <em>Ndlovu</em> further submitted that the reading of the record of proceedings does not show that the essential elements of robbery were established. He added that the trial magistrate did not ask the pertinent question as to what the appellant intended to attain by threatening the complainant with an axe. The essential elements of the charge of robbery, he goes on in his submissions, were not properly canvassed by form of questions put to the appellant by the court <em>a quo</em>.  </p> <p>When the court showed Mr <em>Ndlovu</em> the manuscript of the record of proceedings, he admitted that the had not read the long hand noted by the court, he also admitted that when the notice of appeal was prepared, the legal firm’s professional assistant might have not read the record of proceedings, he further admitted before the court that after reading the manuscript of the record of proceedings, the attack by the appellant contained in the residual round of appeal had no merit. The trial court comprehensively covered all the essential elements of robbery and the appeal had no merit at all.   </p> <p>It is very disturbing to note that an appeal is prepared by a legal practitioner without first of all going through the whole record of proceedings including the notes captured by a judicial officer, moreso where the fulcrum of the appeal is centred on the allegations of failure by a court to put essential elements of a charge to the appellant. The whole idea of certifying the transcript by all stake-holders is to confirm that what is contained in the transcribed record is a true and accurate reflection of the manuscript. Whether the notice of appeal was prepared by another legal practitioner, the legal practitioner arguing the appeal must acquaint oneself with both the manuscript as well as the transcript. All this is done to avoid misleading the appeal court. Appellant’s legal practitioners found themselves in a very difficult position to attack the conduct of the trial magistrate as it clearly appeared in the record of proceedings that all the essential elements of robbery were competently and clearly put to the appellant and appellant admitted to them without hesitation and was properly convicted on his own plea of guilty.</p> <p>As earlier indicated herein appellant’s legal practitioners conceded that the appeal had no merit and it was accordingly ordered as follows:</p> <p>The appeal be and is hereby dismissed. </p> <p> </p> <p>  MWAYERA J agrees ________________</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/mutare-high-court/2019/6/2020-zwmthc-6.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24275">2020-zwmthc-6.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/mutare-high-court/2019/6/2020-zwmthc-6.pdf" type="application/pdf; length=201585">2020-zwmthc-6.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/grounds-appeal">Grounds (Appeal)</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/trial">Trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unrepresented-accused-trial">unrepresented accused in trial</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> Tue, 31 Mar 2020 13:16:29 +0000 Sandra 9604 at https://old.zimlii.org