Judgment No. HB 80/2004
Case No. HC 930/02
THE STATE
Versus
JOHN RAPHAEL MASUKU
IN THE HIGH COURT OF ZIMBABWE
NDOU J (With Assessors Chief Ndondo & Mr Chikwewa)
BULAWAYO 24 JUNE 2004
S Musonahfor the state
J James for the accused
Criminal Judgment
NDOU J: The accused is facing nineteen (19) counts of theft of motor vehicles and one count of robbery. He pleaded not guilty to all the counts. Most of the material facts in this matter are fiercely disputed and as a result we propose to consider evidence on count by count basis. We should highlight that evidence was led in a very haphazard manner in this matter. Not only that, but evidence of some witnesses was heard in the middle of that of other witnesses. This rather unusual method adopted by the state was done for convenience’s sake as the state was, by and large, battling to have all its witnesses attend the proceedings in a more organised fashion. We allowed this procedure for the sake of progress but it should be discouraged. Even in cases where the state has several witnesses the logistics of their attendance should be organised in an orderly and chronological fashion.
Mr James for the accused, pointed out that the state’s submissions were submitted out of the agreed time without an explanation or request for condonation. State counsel should always bear in mind their pivotal role in criminal proceedings. The reputation of our criminal justice system depends to a large extent, on the behaviour of those who represent the Attorney-General. Such reputation is obviously
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earned, it does not come automatically. A simple apology for the state’s dilatoriness means a lot in such circumstances. The state should not be perceived to have a cavalier attitude towards the investigation and prosecution of criminal matters.
Count 1
The accused is charged with theft of a motor vehicle belonging to Frank Collin Frith on 25 December 1998. It is alleged that the vehicle was sold to Lameck Kunjeku in February 1999 through the agency of Charles Muringani. In general, the accused’s position is that he was the Director of J R Mas Pawnbrokers (Pvt) Ltd, a registered company, which inter alia conducted the sale of motor vehicles through public and private sales. Melusi Kembo Moyo was the manager who was responsible for sale of the motor vehicles, including receiving motor vehicles, negotiating prices for them, selling them, effecting changes of ownership and other duties associated with the buying and selling of motor vehicles. He says that he did assist in these duties when Kembo Moyo was absent or unavailable, but in the main, Kembo Moyo was responsible for this department in the business.
The accused was also operating other businesses at the time, including a video shop and pawnbroker’s business. The accused points out that this company was involved in numerous transactions involving the sale of motor vehicles, and he cannot recollect all the details involved. The accused states that none of the vehicles were registered in his name save in one or two instances, such as count 10. In this count the accused disputed that the vehicle belongs to Mr Frith because the vehicle was found with number plates 647-438 L yet Mr Frith’s original registration book for his vehicle has 608-916R as the registration number. The accused also highlighted other discrepancies in the documents relating to this vehicle. The accused says that whilst
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there is a possibility that he approached Mr Shead for the new number plates for this vehicle, he believes that it is Kembo Moyo who did so. He says that he has no personal knowledge of the origin of this vehicle but according to documents supplied by Kembo Moyo, viz inventory of goods received under document 1870, it was brought by the late Dale Mashoko of Dreamland Tours. The vehicle registration was initially changed to Kembo Moyo’s name on 4 January 1999 and on the same date changed into the name of Charles Muringani. The Central Vehicle Registry extract for vehicle registered under 647-438L does not show that the vehicle was even registered in Kembo Moyo’s name but shows that the vehicle was registered in the name of Mr Lunt in Masvingo on 27 January 1999 i.e. long after the vehicle had been involved in an accident and had been written off. The accused says he has no knowledge of the origins of the alleged letter from the Deputy Sheriff.
Frank Collin Frith– His Mazda station wagon vehicle registration number 608-916R was stolen in Bulawayo on 25 December 1998. He bought the vehicle as brand new and the initial registration was done by the garage on his behalf. He was called by the police in Bulawayo. He identified the vehicle as his by cigarette burn marks on the front panels which had been caused by his grandmother before the theft. When the vehicle was stolen it had a tow bar, but the vehicle at the police did not but there were signs that it had had a tow bar fitted on. The vehicle had an alarm and anti-theft systems fitted at the time of the theft. At the time of the identification the hooter of the alarm system was still fitted. He said it had a carpet specially made from off-cuts by his father-in-law. This carpet was still there underneath the AMTEC one. He also testified of other insignificant identification marks. He was thus able to identify his vehicle from these marks or features.
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Helena Mashoko– She is the widow of Dale Themba Mashoko of Dreamland Tours. She is also a director of the said company. She said neither her late husband nor their company ever owned the disputed vehicle in this count. She conceded that besides their business she, as a qualified teacher taught at Hamilton School at the time. She was not at the business all the time. She however, said that she knew all their vehicles. She conceded that the documents shown to her could have been signed by her late husband. She, in other words, confirms that that was his signature but had a question mark on how it got there as these were photostat copies and not originals.
Terence Edward Manikin– He was a manager as Bulawayo Car Breakers for seventeen years. He knew the accused as a customer of Bulawayo Car Breakers. They kept records of the vehicles that they were breaking. Such records would indicate person from whom wreck was purchased, vehicle registration number, colour, engine number, chassis number and purchase price. They purchased the metallic dark blue Mazda 626 registration number 647-438L from John Love Motors. He kept the books as own personal records. This vehicle was stripped for parts and sold to different persons.
William Kenneth Lunt– He used to own a Mazda 626 sedan vehicle registration number 647-438L. He was involved in an accident some 20 kilometres from Beitbridge on 20 July 1997 or 1998 and the said vehicle was written off. Although conceding that he is not an expert he believed that the vehicle could not be repaired and put back on the road. He later received a call from Bulawayo (where the wreck had been towed to) from someone who wanted to buy the wreck. He got the vehicle when it was brand new as company car. According to his registration book (produced
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as exhibit 75) the engine number is FEWOZO 654 and chassis number GW 782121. Under cross examination he denied making the hand written alterations in his
statement where the colour of the vehicle was changed from dark blue to white. He disputed a lot of information in the Central Vehicle Registry extract purportedly for his vehicle.
Charles Maringani– He used to sell accused’s vehicles on commission. (The accused admitted that he was indeed his agent when testifying). The accused gave him the white Mazda 626 in February 1999. Although he was not sure he believed that it was in the accused’s name. The vehicle was cleared and he was given necessary documents to effect change of ownership at Masvingo Municipality. The accused said he would get 10% commission for every vehicle that he sold. He advertised the vehicle and got Lameck Kanjeku of Renco Mine as a buyer. Mr Kanjeku paid through his employers. As the vehicle was in his name at that stage he took it to Criminal Investigation Department at Masvingo police were it was cleared and the transfer to Kanjeku was effected. He received the purchase price and handed it to Mrs Masuku as directed by the accused. He gave the full purchase price to her. The accused had promised to pay him the commission later. He disputed that he registered the vehicle at Umgusa on 4 January 1999 as reflected in exhibit 78. He expressed surprise that Masvingo Municipality, where he registered the vehicle, does not even appear on this document. He sold the vehicle for $250 000 but asked for $300 000 from Kanjeku’s employers. He gave $50 000 back to Kanjeku for him to buy a CD radio for the vehicle.
Vongai Togarepi– She is a Forensic Scientist at Forensic Science Laboratory under the Ministry of Home Affairs. She examined the Mazda 626 executive registration
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number 647-438L and compiled her report referenced Lab Ref 347/2001. She examined the vehicle at Masvingo Rural Police. She did a colour profile and fund
that white was the original colour. The vehicle was still white at the time of her examination. There was evidence of tempering with both the engine and the chassis numbers. There were data plates, one with vehicle identification number GW 782121. The second data plate had engine number FE-WO20654. She checked on the off side arch where the chassis number is usually punched and there was evidence that the original chassis number had been erased and new one number G782121 punched on. She carried out chemical etching and restored the following original number 83EO783. The same evidence of tempering was found in respect of the engine number. The original engine number had been erased and new number FEWO?20654 punched on. She did chemical etching and managed to restore only one number i.e. a “1” before the “2” of the punched on number, supra. She further said that this vehicle was a station wagon.
Chamunorwa Morgan Nduku – Executive Officer responsible for vehicle registration. He has been with Central Vehicle Registry for eighteen years and ten of which were with vehicle registration. For registration of a vehicle he says that the applicant has to have both Customs Clearance Certificate and Police Clearance Certificate irrespective of whether the vehicle is locally assembled or imported. These are forwarded to his office together with the prescribed form CVR4 duly completed by the applicant and CVR’s agent. The information is captured in their data base and the Customs Clearance Certificate is thereafter forwarded to the Zimbabwe Revenue Authority. CVR details keep the other documents for four months before reducing them to archival status and forwarding them to National
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Archives. Their registry was manually operated until 1996 when they started computerising their data. They are not yet fully computerised. He conceded that the CVR extracts do not reflect updated information for various reasons. He also agreed that the information on CVR extract exhibit 78 differs with the oral testimony of Mr Lunt e.g. Mr Lunt’s vehicle was dark blue (and not white). His vehicle was involved in an accident in July 1998 and written off [so he could not have become its owner in 1999]. He attributed these problems to late arrival of information from their agencies or wrong information altogether. As their system is not online capturing is generally slow. Information from the police also reached them very late at times. Dissemination of information to CVR by the relevant authorities is generally slow and this affects the quality of their data. Data supplied from designated agents comes manually and may be kept at CVR for as long as two months before it is captured in their computerised data base. They do not directly do police clearance but Harare Vehicle Theft Section does that. CVR details download their data to Harare Vehicle Theft Section every Saturday.
Lameck Kanjeku – In 1999 he got a loan to purchase a vehicle from his erstwhile employers. He got interested in the Mazda 626 in this count which Muringani was selling. After the formalities were carried out he went to Criminal Investigations Department Masvingo Police where the vehicle was checked and cleared. The change of ownership was effected.
Superintendent Mpofu –He recorded, inter alia accused’s warned and cautioned statement in count 1 produced as exhibit 134. Initially the accused was being charged with a contravention of section 12 of the Miscellaneous Offences Act [Chapter 9:15]. The accused gave his explanations (statements) in response thereto. When the
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vehicles were identified by the complainants he once more invited the accused to make statements in respect of the charges of theft.
Chief Superintendent Rubaya– His team was constituted to investigate the conduct of police details attached to the Bulawayo Vehicle Theft Section. In the course of their investigations they picked up that quite a number of vehicles were passing through the hands of the accused and one Luckson Dube. They carried out follow up investigations. As a result of their investigations this vehicle, and others were recovered as they were suspected to be stolen. They placed advertisements in the media and complainants came and identified the vehicles as their stolen ones. They sought the assistance of Forensic Scientists who confirmed that the vehicle’s engine and chassis numbers had been tampered with. The chassis and engine numbers of the vehicle wrecks that were written off were super imposed or punched on the erased areas where the original numbers were located. They checked the records of Bulawayo Car Breakers in the course of their investigations. They also interviewed the insurers of the stolen vehicles. The cumulative effect of their investigations was that the vehicles must have been stolen. He was present when the accused answered to the original charges under the Miscellaneous Offences Act, supra. The accused made his statements in the presence of his erstwhile legal practitioner. His team followed up the answers given by the accused but concluded that he was not telling the truth. In this count he said that he followed the accused’s statement that his company got the vehicle from Dreamland Tours and checked with the Director Mrs Helena Mashoko. He stated that they checked out Number 32 Umgusa Estate used by accused and found that it is non-existing because, according to Deeds Registry records the plots ended at number 28. They also went to check the Vehicle Registry
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offices at Umgusa Rural Council. Prior to their going there, they phoned to inform them to expect their team. When they got there the lady responsible for registration of vehicles had fled and gone to London. So they were unable to interview her. He said that the decision to release the vehicles prior the trial was taken by his superiors and the public prosecutors. He said that in those instances where the findings of the Forensic Scientists differed with the testimony of the complainants his team sought other sources such as manufacturers and International Police from the region. He, however, failed to explain how the latter would be of assistance in the resolution of the contradiction in the testimony of the Forensic Scientist and persons claiming vehicles to be theirs. Whilst he conceded that it was unwise to release the vehicles before the trial he was adamant that he did not take that decision. He said that his team did not obtain Customs Clearance Certificates for these vehicles from Zimbabwe Revenue Authority notwithstanding the fact that the defence counsel requested to have copies for over a year. He said that the alterations in Mr Lunt’s statements were made by Superintendent Mpofu [from his assessment of the handwriting]. He, however, did not know why he made that these alterations after Mr Lunt signed them and he conceded that it was improper for Mpofu to do so without lunt’s knowledge.
Count 2
Terence Manikin- What he said in count 1 generally applies. They bought a white Mazda registration number 607-306P with chassis number 30845 engine number F6WO3288 on 5 February 1999. The engine was sold. They broke the wreck into a further total of 59 parts and sold them to different persons.
Roselyn Masuku – The accused is her late husband’s young brother. She said that Charles Muringani used to sell vehicles on behalf of the accused. Muringani would
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then give her the proceeds of such sales and she would deposit the money into the accused’s ZIMBANK or CABS account. In respect of the vehicle in this count she
was given the proceeds and she deposited the same into the accused’s account. She latter became aware that the vehicle had been sold to Mr Titterton. She did not get anything for her role as she was assisting the accused as her brother-in-law. One of the bank accounts was accused’s personal one and the other was his company account.
Arthur Titterton – He bought a Mazda B1600 registration number 607-306P from Charles Muringani in April 1999 for $130 000. The vehicle was cleared by CID Masvingo Police in his presence. Police checked the chassis and engine numbers.
Charles Muringani –He acted as accused’s agent in the sale of the vehicle in this count. He got the vehicle from the accused but throughout his dealings with the accused Melusi Kembo Moyo was present.
Shingirai Shamu– She is the Principal Forensic Scientist. She examined a cream Mazda B1600 registration number 607-306P. She produced her report LAB Ref 376-2001. There was an aluminium data plate on the centre of bonnet which bore chassis number EF6WO3288. As for the chassis number for Mazda B1600 there are normal but for the engine number EF was not normal. Physical evidence indicated that the original number was erased and new UV 153972 punched on. After chemical etching she restored original engine number -----7-4-.
Morgan Nduku –Mazda B1600 registration number 607-307P was first registered in Zimbabwe on 13 February 1995 under the names Doncea Robert Bulkehis. It was transferred to Mr Muringani and then Mr Titterton and was cancelled on 17
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November 1999 i.e. it was removed from the road. According to their records the vehicle had been scrapped.
Assistant Insepctor Nyausopo –Anglican Ncube responded to an advertisement placed by the Special Investigation Team. He approached CID Zvishavane. He was looking for Mazda B1600. He gave amongst his identification features a broken door handle, dent on the dash (board), dent in the cabin hole (where radio is fitted) [sic]. He went on to identify the vehicle. Under cross examination he conceded that in his statement he did not state the above identification marks attributed to Anglican Ncube.
Superintendent Mpofu –He recorded accused’s warned and cautioned statement exhibit 135 from the accused. The rest is as in count 1.
Superintendent Rubaya– Generally as in count 1.
Count 3
Petros Khumalo –Security Officer at Bulawayo City Council. On 16 August 2000 he parked a Council Mazda B1600 outside the Tower Block registration number of the vehicle is 586-272B and he closed and locked it. When he later came out of the building the vehicle was gone. In response to the above-mentioned police advertisement he went to Ross Camp and saw Inspector Ndlovu. Before proceedings to the vehicle yard he told Inspector Ndlovu that he would identify the vehicle by a dent on the left side below passenger door and another small dent on the back. After Inspector Ndlovu recorded these features they proceeded to the storage yard. He identified the vehicle by the aforesaid features. They went back to the office. They checked the records of the vehicle. The engine number in the registration book tallied with that in the vehicle. He said when it was stolen the car was off white and he says
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it was between white and beige. He said that although the police said that the chassis numbers have been tampered with he did not personally examine this. The same applies to the engine numbers.
Helena Mashoko – She disputed that her late husband gave the vehicle to the accused or his company. What she said in count 1 generally applies in this count.
Terence Manikin– They broke down a white Mazda B2000 registration number 592-544F. The chassis number was not recorded and engine number was FE 1386. The engine was sold to a S Dube. They got a total of 45 parts from this wreck. He opined that it was not possible to repair and get the vehicle on the road again.
Roselyn Masuku – She bought this vehicle from the accused and had only made part payment at time it was recovered by the police.
Philip Mateveke –He said he used to own a Mazda B2000 registration number 593-544F which he bought in March 1999. He was involved in an accident in this vehicle on 7 July 2000 along Masvingo – Beitbridge road and the vehicle was a write off. The wreck was sold to Bulawayo Car Breakers. He opined that the wreck was beyond repair.
Vongai Togarepi –She examined the cream Mazda B2000 vehicle and compiled LAB Ref 346-2001 exhibit 107. Registration number was 593-544F. Chassis number on data plate was UV 7600383 and engine number F6WO2399. She examined the chassis frame and the physical evidence showed that the original chassis number had been erased and a new one UV 76003 and a sign looking like a “3” facing the other direction and a “9” after that. She did chemical etching and restored UV—00053. There was evidence of tampering. The original engine number was erased and the following punched on F6WO2399. She did chemical etching but could not restore
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any number. She also observed that the model on the data plate was given as B2000 but the vehicle was inscribed B1600.
Morgan Nduku –Generally as in count 1.
Inspector Ndlovu –Petros Khumalo gave him identification features of his vehicle and he recorded the same in his diary. He recalled that he identified a dent underneath front passenger seat and front left fender had a dent. [The latter differs from testimony of Petros Khumalo]. He took Khumalo to the yard and the latter identified the vehicle.
Count 4
Helena Mashoko –Like in other counts she said this vehicle did not come from their company Dreamland Tours or her late husband.
Terence Manikin –Generally the same as in count 1.
Kenneth Bernard Shead –He owns a company that manufactures number plates. The accused has ordered number plates from him. He described the process of making number plates especially the security, but at the end nothing really turns on his testimony.
Charles Nelson –He is managing director of Beefeater and Rolls Car Hire was of their sister companies. In 1998 their company used to own a Toyota Hilux 2.4 diesel registration number 685-535W. The vehicle was involved in an accident and was a write off. Richard Sibanda was driving.
Richard Sibanda –He was involved in an accident in the said vehicle and it was a write off. The roof fell in, all the doors were damaged and pushed in. The bonnet and the whole front was extensively damaged. In his view the wreck could not be panel beated.
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Rudolf Masimo –He swooped his Mazda Rustler for a green Toyota Hilux registration number 685-535W. He bought (or swooped) the vehicle through the agency of Murigani from the accused. Hr drove from Masvingo to Bulawayo with Muringani to negotiate the deal with the accused. The deal was sealed with the accused.
Charles Muringani– Basically confirmed what the previous witness said.
Vongai Togarepi –She examined the Toyota Hilux metallic turquoise registration number 685-535W. She observed that the original colour on the bonnet. She observed two data plates. The first one had model LN 57R-MDNS. The second one had model LN56R-MRN Eng 2L diesel 2446, chassis number 0132700. She observed that the original engine number had been erased and new number ZL 3685619 punched on. She did chemical etching and restored a “4” before “3” an “O” before “1” and “5” on “9”. The original chassis number had also been erased and a new one punched on viz AU-LN56-01132700. The new numbers were not professionally punched on with 5, 6 and 2 doubly punched. The chemical etching restored AUT3 N5603015902.
Charles Nduku – He said this vehicle came from South Africa and is 1984 model. The engine number is L 2368561 and chassis number LN 560132700. It was first registered in Zimbabwe in the name of Mika Moyo on 14 August 1997. The same day it changed ownership in the name of Rolls Car Hire.
Ryan Ronald Sargant– He said on 1 April 1999 his Toyota Hilux Raider 2,8 diesel metallic green was stolen from Bulawayo Centre. Responding to police calls he went and identified the vehicle by bull bars. He also gave some incoherent features about the stickers with company logo.
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Inspector Ndlovu– He testified on how Sargant identified the vehicle to him.
Superintendent Rubaya– His testimony is more or less what he said in count 1.
Count 5
Francis Murombedzi –He said that Charles Matongo and one Muunganirwa approached him selling a Datsun 1800. He paid $70 000,00 to Muunganirwa. Police later came and recovered the said vehicle from him. During the transaction he had given Muunganirwa his national identity card and when he testified he had not yet got it back. They did not give him the registration book for the vehicle. He never owned or possessed a Ford Bantam. He did not know Petselo Dube. He did not enter into an agreement with the accused and he did not even know him. He said that the signature purporting to be his in the alleged agreement was forged.
Petsulo Dube– In January 2001 the accused asked him to look after two vehicles viz – a green Nissan Hardbody and maroon Mazda Rustler. He said he wanted to conceal the vehicles as he was in the process of a divorce and did not want them to be regarded in the divorce matter as matrimonial property. The accused is his brother-in-law. He made his statement to the police in the absence of any pressure by the police.
Terence Manikin– On 15 August 2000 they received a Mazda B2200, registration number 669-911N grey in colour. The chassis number was not recorded. The engine number was F2W00731. The vehicle was broken for spares. 35 different spares were sold to different individuals. In his opinion the vehicle could not be put back on the road.
Superintendent Rubaya– His testimony is basically similar to that in count 1.
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Count 6
Thomas Khumalo – On 16 May 1997 he said he bought a Mazda 323 registration number 602-681M. The vehicle was involved in an accident. It was a wreck thereafter.
Yokitan Phiri– In 1998 he said wanted to change his Toyota Corolla for a pick up. He read in the media about the accused’s involvement in that area. He swooped his
Corolla for a pick-up plus $20 000. The vehicle registration number was 628-409P. The vehicle was duly cleared by the police. He swooped this vehicle for a Mazda 323 with the accused.
Bekimpilo Mkwebu– He is an employee of CGU. He said vehicle registered under 697-188M. The vehicle was stolen on 27 March 1998. It was recovered by the police.
Allen Moyo @ Dieleson Gumbo– He is a prisoner. He said that the accused had arranged for him to claim the vehicles. In essence he said that the accused attempted to use him to defeat the course of justice. He told the police about this attempt as he was not interested in the accused’s criminal scheme.
Shingirai Shamu– She examined a metallic green Mazda 323 registration number 602-681M metallic green was the original colour. There were two aluminium data plates inside the bonnet. The chassis had no figures written. The engine number was E3-WO3932. Under model, no information was written. On the off side the data plate the following information – model BF 224 F VIN BT8M7075. The area where the chassis number is normally located was painted green. Chemical etching restored the original chassis number BTW 80077. Original number was erased and new one punched on i.e. F3 WO3932. Chemical etching did not restore the original numbers.
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Clint Steel Proctor– Naturally as he was called in place of an ex-employee who had since moved to the United Kingdom he had problems in pointing out any identification features. His testimony is not helpful.
Superintendent Rubaya– Generally he testified as in the other counts.
Count 7
Nice Gonouya- In July 1999 she bought a Mazda 323 from Mrs Masuku for $150 000,00. The registration number was 570-997Y. He got the registration book
from Muringani on the instructions of Mrs Masuku. The vehicle was cleared by Masvingo Police. The vehicle is royal blue and was taken by the police.
Collen Dube – He is employed by Zimbabwe Sugar Refineries. On 15 January 1999 he was involved in an accident driving a company vehicle a Mazda 323 hatchback registration number 570-997Y. The engine was not badly damaged but the body was extensively damaged.
Simbabrashe Admore Diriva– He is the Accounting and Administration Manager as Zimbabwe Sugar Refineries but he was not employed in that capacity at the relevant time. His testimony is of no assistance in the resolution of the issues before us.
Terence Manikin – A light blue Mazda 323 registration number 570-997Y was received on 2 June 1999. Both the chassis and engine numbers were not recorded. The gear box was stripped. There was no chance of getting this vehicle back on the road. They sold 47 different parts to different people.
Roselyn Masuku– She sold this vehicle on behalf of the accused.
Chamunorwa Msindo– Employed by Mobil Oil. One Chipuka took a company vehicle registration number 602-792H to his house and it was stolen. He knew the
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vehicle. He identified it by a missing cab, original blue paint. His identification was generally incoherent.
Charles Muringani– For this vehicle the accused personally went to have it cleared at Bulawayo Vehicle Theft Section in his company. They changed the vehicle into his name and he took the vehicle to Masvingo where it was sold.
Vongai Togarepi– She examined a Mazda 323 hatchback blue in colour. Paint evidence indicated that the original colour was red. There were two aluminium data plates. The first had VIN BT8M5652 and the second one E3-WO2509. The original
engine number had been erased and a new number punched on. There is an omission of E3 before the number. On etching she observed “2” on “3” and “3” on “5” and “0” on “O”. The chassis number had been erased and the new number BT8M5652 punched on. She did chemical etching and restored BT8M7730.
Count 8
Duncan Dominic Holland– He said in 1999 they had a vehicle belonging to People’s Housing Zimbabwe at Busy Auto. The vehicle was involved in an accident and taken away. They took the vehicle to the Vehicle Inspection Depot. After about three months they bought the vehicle and thereafter sold it to Desa’s Motors. Change of ownership would only taken place after repair.
Mavis Nkomo– She said that in 17 July 1999 she was driving her late brother’s white Mazda B1800 registration number 705-781C. She had used this vehicle several times before. She parked the vehicle next to Fidelity Life Towers and closed and locked it. She went into the building and it was stolen in her absence. She was contacted by a police officer. She was informed that a cream B1800 had been recovered. She said that she would be able to identify if it were her brother’s stolen vehicle even if the
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colour had been changed if she opened the bonnet. She opened the bonnet and identified the vehicle by a plastic grill which had been broken and rejoined after an accident. Some metals had been joined in order to secure the grill. There was now metal grill. She also observed white paint inside the bonnet on the edges. She did not know the engine or chassis number of the vehicle. She later conceded that the correct registration number for the vehicle was 705-181C.
Helena Mashoko– As with other counts she denied that this vehicle emanated from her husband or their company.
Ernest Shandukira– The accused brought his car for repairs at Desa’s Panel Beaters. On 23 September 1999 he bought a Mazda B1800 from Ms Holland of Busy Auto as a salvage. It was badly damaged. He took time to repair it. After the repairs he got a Certificate of Fitness and the registration book in the name of People’s Housing of Zimbabwe and changed it into the name of the buyer. He was partners with Stanford Chidakwa from 1984 and the latter passed away in 2000. He knew his personal and business vehicles as they were working together and stayed together at Glenkara for some time. He said that Mr Chidakwa never owned a Mazda 323 registration number 638-040W nor a Mazda Rustler 603-046J. He also never owned a Mazda 323 hatchback registration number 624-131C and all other vehicles that the accused said emanated from him.
Roselyn Masuku– Martin Phiri saw a cream Mazda B1800 in her custody in Masvingo. He was interested and she phoned the accused and he authorised her to sell it and she did so. She deposited the proceeds thereof into the accused’s or his company’s account.
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Fanas Matura– Confirmed that he sold the accused vehicles. This was evinced by a receipt which he gave to the police. [Unfortunately the receipt appears to have gone missing rendering his testimony meaningless.]
Tuesday Ndlovu– He was employed by Umzingwane Rural District Council as a Revenue Collector at the relevant time. He was responsible for vehicles licensing. He was introduced to the accused by Melusi Kembo Moyo. The accused lent him money and he provided household gatechets as security. He was not sure who he dealt with between the accused and Kembo Moyo, but the registration number of the
vehicle was 701-541T. He confirmed a lot of discrepancies in the CVR extract for this count.
Martin Phiri- He bought a cream Mazda B1800 from Roselyn Masuku registration number 701-541T. The registration book was in her name. The vehicle was cleared at Masvingo Police.
Count 9
Margret Robyne Hunter– In August 1998 she bought a Mazda B1800 registration number 706-911F. In September 1999 it was involved in an accident and the insurance wrote it off and paid her off. The wreck was badly damaged but she declined to opine on whether it could be repaired.
Boas Masinire– His company had a Mazda B1800 registration number 694-300Y. The vehicle was stolen in the front of the company where they park their vehicles. He also went to Ross Camp to identify the vehicle. He told the police he identified it by tinted windscreen and rubberised back and had a crack in front bumper occasioned by a stone that he had hit. The dash board and seats were grey in colour and it was white. He was taken to the yard and identified a vehicle with a different colour. He
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identified it by the tinted windscreen. He conceded that these identification features do not appear in the police initial report which was made at Donnington Police. He conceded that the number registered by Forensic Scientist Togarepi was not consistent with the vehicle being his stolen one.
Helena Mashoko– This vehicle did not emanate from them.
Terence Manikin – On 2 October 1999 they received a Mazda B1800 registration number 706-911F with engine number F8W0424207. The chassis number was not
recorded. The vehicle was stripped for 63 different parts and sold to different people and he opined that the vehicle could not get back to the road.
Roselyn Masuku – She sold the vehicle on behalf of the accused to Martin Phiri.
Vongai Togarepi - She examined a navy bluish purple Mazda B1800. The paint profile showed that the original colour was white. She examined the data plate and found model given as B1800, chassis number VW 1103706 and engine number F8W04207. The area where the engine number is usually located had been cut off completely i.e, it had been removed. There was no number observed. Near the gearbox on the engine block F8W04207 had been punched on unprofessionally. The chassis number had been erased and new one punched on viz VW1103706. She did chemical etching and restored VW113537.
Martin Phiri– He bought this vehicle from Roselyn Masuku and it was properly cleared by the police.
Count 10
Usher Ncube – Sometime in 1998 he bought a Nissan Hardbody 2,0 registration number 717-587K white in colour. The vehicle overturned on 29 December 1999.
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He took it to Auto Body and after some time it was repaired and it is back on the road. His vehicle is a single cab. He bought brand new.
Newton Makava– He is the Regional Manager, Fincor. On 23 December 1990 they paid the accused’s company J R Mas $300 000,00 when they financed the purchase of a Nissan Hardbody 2,7 by Automaton Technology.
Kenneth Shead– Generally said what he said in count 4.
Job Muneno – In December 1999 he traded-in his Mazda B1800 for a Nissan Twincab. He personally conducted this transaction with the accused in the latter’s office. He paid an additional $300 000 to the accused.
Francis Msimanga– He works for Nissan Clover as Sales Representative. He produced a job card which shows that his garage repaired a Nissan Hardbody TD 2,7 registration number 711-587K. The vehicle came into their workshop on 19 July 1999 and the owner’s name was J R Mas.
Shingirai Shamu– She examined a metallic green Nissan Hardbody registration number 717-587K. The paint profile revealed that the original colour was metallic blue. The data plate inside the bonnet had a chassis which had a “$” sign at the beginning and ZIM 2C 900G0288285. Under model nothing was inscribed. Engine motor TD 27. She observed a chassis number punched on viz $ZIM 2C900G0288285$. This area was painted green on top of these number. She observed that near side back of the chassis frame the following numbers were punched on G0288285. Chemical etching restored G028829. The original engine number had been erased and a new number NA2005441X was punched on. Chemical etching restored “T” at the beginning and “X” at the end. She did not manage to
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restore any other digits. The numbers she restored are different from those in the registration book for vehicle 717-565L.
Count 11
Mahomed Zoolay– On 5 August 1998 he said that he bought a Mazda Rustler from Bulawayo Car Breakers registrations number 603-046J. They in fact bought a body minus the engine as it was accident damaged. They repaired the vehicle and obtained a certificate of fitness for the vehicle. They discovered that there was another vehicle sharing the same registration number. The car belonged to the accused. The accused came to discuss the matter and said he is the one who bought the engine from Bulawayo Car Breakers. He said on account of having bought the engine he was the one entitled to the registration book and not the witness who only purchased the body without the engine. The accused undertook to sort out the problem.
Rodrigo Augusto Taiare– On 2 May 1999 he was driving a Mazda Classic when it was stolen along Francis Warren Road, Ilanda, Bulawayo. In October 2001 at the request of police he went to identify the vehicle. He locked the same. He identified the speedometer which had a crack that he occasioned when he was fitting an alarm system. Further the chassis number of his vehicle were inscribe on the door and windows. The number was still there inscribed at time vehicle was recovered. When he removed the carpets the metallic colour was still there although the colour of the car had been changed to white. The car also bore different registration numbers. At the time he testified the vehicle had been given to him by the police. He denied having made the chassis numbers on the windows after the vehicle was given to him
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by the police. Although he could not recall what the chassis number was, he, however, said he compared the number in his registration book and that engraved on the window and it was the same.
Ernest Shanukirai– He and or his late partner did not have a Mazda Rustler registration number 603-046J although he conceded that he needed his records to verify some of the details.
Terrence Manikin– On 13 April 1997 they received a Mazda Drifter/Rustler registration number 603-064J. They did not record the chassis number and the engine number B3966114. They stripped it for parts. They sold the engine to Panel Craft.
They stripped it into 29 parts. He opined that the wreck could not be repaired to get it back on the road.
Michael John Collin – He said that in 1995 bought a Mazda Rustler registration number 603-046J as brand new from AMTEC, Bulawayo. It was registered in his daughter’s name. The vehicle was involved in a head-on accident and it was a complete write off and he was paid off in full by the Insurance Company. The latter took the registration book.
Wilfred Nyika– He was introduced to the accused by Charles Muringani who brought him from Masvingo to Bulawayo. They went to the accused’s place where he saw a Mazda Rustler. The accused showed him the vehicle. They reached an agreement that he paid $100 000 deposit and balance was to be paid in instalments. The accused, as arranged, sent him the registration book to him in Masvingo through his sister-in-law Roselyn Masuku. He went out of the country several times using the vehicle and on each such trip the police would clear the vehicle.
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Count 12
Patrick Moyo – He said he used to own a Toyota Hilux registration number 706-912G from 1998. The vehicle was involved in an accident when his brother was driving. The insurance company paid him off and took the wreck to Bulawayo Car Breakers. The registration book was also taken by the insurance company.
Terrence Manikin– They received a Toyota Hilux registration number 706-912G cream in colour. They did not record the chassis number. They stripped the car for parts and realised 58 parts which they sold to 58 different persons.
John Robert Anderson – On 8 March 1999 he said that he bought used Toyota Hilux engine from Bulawayo Car Breakers. He fitted the engine into a Mr Sibanda’s mini-bus.
Helen Mashoko –This vehicle did not emanate from their company.
Danny Zhangazha – He is Senior Vehicle Inspector at Vehicle Inspection Depot. As a result of police inquiries he checked through their records. He picked only one vehicle from the police list, viz registration book 706-912G. This was a Toyota Hilux 2,4 pick-up. It belonged to P and U International Agencies. This vehicle was under prohibition from use i.e. R T 16 after the accident.
Vincent Manyadze– He bought a vehicle from Charles Muringani who said he was the accused’s agent. The vehicle was cleared by police Masvingo. Their agreement of sale was in writing and he produced a copy thereof. Registration number of the vehicle was 706-912G.
Vongai Togarepi– She examined a red Toyota Hilux registration number 706-912G. The paint profile indicated that the original colour was white. There were two data plates inside the bonnet. The first data plate had: Model: Hilux LN 56RMRNM. The
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second data plate: VIN-AHT31LN5603033621- Model LN 56R-MRNM: Job No. F8B290905, Engine CM3 2L 2446. Chemical etching did not restore original engine number but physical evidence showed that the original engine was erased and new number 244963B punched on. The physical evidence indicated the original chassis number was erased and a new chassis number AUT31 LN5603033621 punched on. Chemical etching restored the following number LN56—301--- 243.
Count 13
Helen Mashoko –She stated that her company never owed a Nissan Sunny registration number 578-32L.
Florence Hezel Millar– On 13 March 1998 her Nissan Sunny registration number 503-313D was stolen outside Root Garden Centre, Chisipite in Harare. On 14 August
2001 she was invited by Bulawayo police and she came over and identified her vehicle. She identified the car by a chip on the windscreen at eye level on the driver’s side. On the rear bumper she had hit a tree and the mark was still there. On the left side front there was a slight dent on the roof. The blue colour was still the same.
Pascah Rupiya– In 1997 he bought a Nissan Sunny from K M Auctioneers. After effecting repairs he decided to sell the vehicle. In June 2001 he was invited by police at Stops Camp. He was shown a Nissan Sunny with his registration number 478-432L but it was not his previous vehicle. The vehicle he saw at the Camp never belonged to him. It was not the one he sold to the accused although the registration number plate gave that impression.
Shingirai Shamu– On 10 May 2001 she examined a Nissan Sunny 1,5 LX registration number 478-342L. The paint profile indicated that blue was the original colour. There was a data plate inside the bonnet showing chassis number B12019,
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type HB 12. The physical evidence indicated that the original number was erased and a new number E15230187B punched on. Chemical etching did not restore the original engine number.
Nokuthula Moyo– She bought a Nissan Sunny from the accused. She said the colour of the vehicle was blue. The vehicle gave her problems but she could not recall material details of her dealings with the accused. What she was, however, clear about was that it was the accused she dealt with although he was at times in the company of Kembo Moyo.
Count 14
Elliot Ncube– His Mazda B1600 registration number 592-335R on 3 July 1999 was stolen from his house. The vehicle was Indonesia blue. He later identified a whitish Mazda B1600. He checked under the seat and the blue paint was still there.
Fatima Toronga– She is employed by Eagle Insurance Company as Claims Supervisor. Casymn Mining insured its Mazda with their company. In July 1998 the car was involved in an accident and it was a write off. They paid off the insured and sold the wreck to Bulawayo Car Breakers. After checking the records she corrected that the vehicle was in the name of Matabeleland Minerals.
Terence Manikin – They received a Mazda B1600 registration number 477-972J white in colour. They did not record the chassis number. The recorded engine number was F6310216. They stripped it into 40 parts which they sold to various people.
Desa Chidakwa – She said that this vehicle did not emanate from her late husband.
Vongai Togarepi – She examined a Mazda B1600 pick-up registration number 477-972J. The original colour was light. Inside the bonnet the data plates showed: Model
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B1600, chassis number UT 76/0503, engine number F6310216. The physical evidence showed that the original chassis number was erased and new one, UT760503, punched on. After chemical etching she restored 1373 as engine number and V15455 as chassis number.
James Chawanda Katuri– He was introduced to the accused through a friend on 14 January 1999. He bought a Mazda B1600 from the accused. They signed an agreement of sale. The accused did the change of ownership and sent him the registration book already in his name.
Count 15
Gozen Takawira Simbanegavi– His company Heifer Project International had a Nissan 2,7 which was involved in an accident and written off. The registration number was 717-559E.
Petsule Dube - As highlighted in count 5 he said he was given this vehicle by the accused to keep for him. Generally what he said in count 5 applies here.
Paul Denton – He is employed by Treger Group of Companies. On 4 December 2000 he was robbed of vehicle at gun point. It was a green Nissan Hardbody 2,7 registration number 693-021H. He was called by police in June 2001 to identify his stolen vehicle. He identified it by hailstorm damage on the bonnet and dents. But he said he positively identified the vehicle by its engine and chassis numbers which he personally checked against those in the registration book and they were the same. Further, the licence disk was still stuck on the windscreen at the time he identified the vehicle. He left the original registration book and licence disk with the police.
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Terence Manikin – They received a white Nissan Hardbody diesel 2,7 on 5 October 1999. They did not record the chassis number. Thy stripped it and realised 52 parts which they sold to various persons.
Cosmas Machokoto Zangara– He is employed by R M Insurance which had insured Heifer Project International Nissan Hardbody registration number 717-559E. The vehicle was involved in an accident and was written off.
Daniel Dube – He is the accused’s father-in-law. Petsule Dube brought a Nissan Vehicle to his communal home. The vehicle was subsequently recovered by the police from his homestead.
Zenzo Moyo – He is a legal practitioner with the Legal Projects Centre. He knew the accused. He did not recall rendering a service as a Commissioner of Oaths to the
accused. He was shown an affidavit purportedly deposed before him. He confirmed that the date stamp on the document is his. The same applies to the signature but he conceded that the document may have passed through him.
Count 16
Johannes Gumbo – In 1998 he bought a beige Mazda B1800 registration number 707-139X from the accused. The accused did change of ownership after asking for his identity card. He gave him the registration book already in his (i.e. witness’ name.
Stanley Ndlovu– On 6 July 1998 his Mazda B1800 registration number 655-334T was stolen at Grey’s Inn. On 7 May 2001 he was called by police to see if he can identify his stolen vehicle. He identified the vehicle by a dent on the bumper. The colour of the vehicle had been changed. When the theft occurred the box was rubberised and it was no longer rubberised. The vehicle had different registration
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numbersviz 707-139X. He did not agree with the forensic scientist that the original colour was cream.
Desa Chidakwa – This vehicle did not emanate from her late husband.
Nicholas Johannes Van Der Merwe– He was approached by the police who were inquiring about the registration number of his trailer registration number 707-319D. The number that the police had differed from trailer’s number by the “D” instead of the “X”.
Thobekile Ndlovu– She saw the accused talking to her husband. She did not hear what they were talking about. She denied that on 20 June 1998 her late husband or their company sold a Mazda B1800 registration number 707-139X to the accused’s company in 1997. She said in any event her husband’s company was then under judicial management. She was however neither a director or shareholder of the company at the time. She conceded that although she frequented the company when her husband was still around she did not accompany him literally every day.
Shingirai Shamu – On 10 May 2001 she examined a cream Mazda pick-up registration number 707-139X. The paint profile indicated that the cream was the original colour. The data plate indicated: Model B1800; chassis number VW1100034; engine number E8W0388. The chassis number had been erased and VWI100064 punched on in its place. Chemical etching restored ---0398. The engine too, had been erased a new one punched viz F8W03688. Chemical etching did not restore the original engine number.
Mandlenkosi Moyo – He is the brother of the late Emmanuel Moyo, owner of Northern Motor Spares. He worked for the said company from 1991 to 1995. He did not sign the agreement of sale between Northern Motor Spares and J R Mas which
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was produced in court and that the M Moyo who represent Northern Motors Spares is not reference to him. He was, in any event, no longer working for that company at the
time of the contract. He pointed out that there was another M Moyo i.e. Mavis Moyo employed there.
Count 17
Michael George Margeron– His son drove his vehicle from Chiredzi to Bulawayo from where it was stolen in July 1999. The vehicle was a Nissan Sunny registration number 583-612K. As a result of a request by the police he came to Stops Camp to see if his vehicle was amongst those that had been recovered. He identified the vehicle because it had not changed much. Its front reflector had dropped off and he had replaced with a little square reflector. He tried to open the car using the spare keys but they could not. He also identified it by a self tapping screw that he had inserted. The registration number on the vehicle was 496-806B. This number was also engraved on the rear window. He disputed the vehicle’s original colour. He also disputed the forensic scientist evidence on the number restored.
Sindiso Sibanda– In November 1999 he bought a cream Nissan Sunny from the accused registration number 490-086B. He was not present when the vehicle was cleared by the police and changed into his name. It was taken by police on 1 March 2001.
Steven March Thompson – In May 1999 he was using a Nissan Sunny registration number 490-086B as a company car. It was involved in an accident and it was written off and the insurers paid them off he did not know what they did with the wreck or registration book.
Ernest Shandukirai– This Nissan Sunny did not come from their firm.
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Terence Manikin – They received a Nissan Sunny registration number 490-086B. They did not record the chassis number but recorded the engine number being
E155005538E. The vehicle was stripped for 65 spares which were sold to various persons. The vehicle was a write off.
Cosmas Zengara, supra said Lancaster MacDonald had insured their Nissan Sunny registration number 490-086B with their insurance company R M Insurance on 19 May 1999. The said vehicle was involved in an accident and as a result written off. The wreck was sold to Bulawayo Car Breakers.
Shingirai Shamu – She said she examined a Nissan Sunny registration 490-986B. A colour profile revealed cream as the original colour. A data plate had chassis number B47545. Evidence showed the original chassis number had been erased and number – 1109 punched in. Chemical etching restored the original chassis number as 5237.
The original engine number was also erased and a new one punched on, viz E15238105B. Chemical etching restored engine number as 2--1--.
Count 18
Jane Makuwerere– In December 1998 she bought a vehicle from the accused. The accused collected her identity card and returned with a registration book in her name. The registration number was 659-858L and the vehicle was sky blue in colour. She later sold the vehicle to someone else i.e. Shepherd Chisanda.
Shepherd Chisanda – He does not know the accused. He bought the vehicle from Jane Makuverere,supra. The vehicle was taken from him by the police.
Douglas Usheunesu Masariramba – He said his employer, Global Insurance Destination Management Zimbabwe (Pvt) Ltd insured a Mazda 323 registration
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number 659-858L. On 11 September 1998 the vehicle was involved in an accident and written off. The wreck was bought by D Mukombe of Bulawayo.
Day Mukombe– He is director of Mukombe Motors. In 1999 he bought a Mazda 323. The car was beyond repair. They broke the vehicle for spare parts.
Ernest Shandukirai– His company did not deal in this vehicle.
Desa Chidhakwa– They did not give this vehicle to the accused.
Vongai Togarepi– She said she examined a Mazda 323. It was light blue in colour. The paint profile revealed that light blue was the original colour. The data plates showed model BF 225 VIN BT 8M8771; engine number FE3W0 5633. Physical evidence showed that the original chassis number was erased and new one, BT3M8771 punched on. Chemical etching restored 5743. The original engine
number was erased and a new one, E3W5633 punched on. Chemical etching did not restore the original engine number.
Count 19
Marthinus Johannes Naude – He bought a Nissan Hardbody 2,7 diesel from the accused in November 1998. The vehicle was subsequently sold to the late Paul Roper.
Ishmael Dliwayo– He used to work for Wilson Motors which operated from the accused’s premises, Juna Court. He denied ever signing the purported agreement of sale between him and the accused. He said he did not know anything about the agreement. He said his names were wrongly spelt. He testified that he never sold a vehicle to the accused at all. He conceded that he left from his statement to the police the issue of the two cheques made out in his favour by the accused, which cheques he
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deposited. He gave some incoherent explanation for his failure to mention these cheques. He said that the cheques were for buying Hi-fis from some Nigerians. It is
not clear exactly what the transaction was all about. He appears to be saying that he was an agent of the Nigerians and worked on commission basis.
Nicholas Nyakauru– He said he is a financial accountant as S M C Ltd which purchased a High Rider. This vehicle, according to company records was involved in an accident in1995 and written off.
John Rolfe Pike– On 7 January 1998 a Nissan High Rider was acquired by his company from R M Insurance. They stripped the vehicle and sold the parts.
Martinus Oosthuizen– Their company, according to their records used to own a High Rider registration number 667-663V. It was san marino in colour. It was written off in 1997 after accident.
Shingirai Shamu – She said on 14 January 2001 she examined a metallic blue Nissan Hardbody 2,7 diesel registration number 667-663V. Paint profile revealed that metallic blue is the original colour. The data plate under the bonnet showed VIN $ZIMZ390005031740$; Model Z39-0265. Physical evidence showed that the original chassis number had been erased and in its place 5031740 punched on. Chemical etching restored part of the original number –037--6. The original engine was also erased and new one punched on viz TD 27-8361580E. Chemical etching restored original engine as TD 27587848E.
Count 20
Luckson Dube Ndachiwana– He said he knows the accused as they used to move together when they grew up. His friend Farisi Ndebele bought a wreck at Bulwayo Car Breakers. He started rebuilding the vehicle. They saw a vehicle with the same
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plates as the one Farisi Ndebele was re-building. They went to report to Vehicle Theft Section to Officer Kawara.
Terence Manikin– They received a Mazda B2500 registration number 687-684G light blue in colour. The chassis number VW 1301303. The engine number 356201. They stripped it for parts which were sold to different persons.
Clifford Leanard Masson– He said he swooped his Mazda registration number T35 566-754L for accused’s Mazda B1800 registration number 687-684G.
Farisi Ndebele– His evidence is similar to that given by Ndachiwana.
Simon Mhunduru– On 13 January 2000 he sent Samuel Baviri. He was later informed that the vehicle he was using had been stolen. It was a cream Mazda B1600 registration number 653-123Q. He identified its colour and a welded seat. The vehicle had been allocated to him when it was new.
Detective Ndlovu– On 11 January 2001 they went to recover a suspected stolen vehicle from Mr Mason. He later said he got the vehicle from the accused. They recorded statements from both sides.
Alice Dzimwasha – She was introduced to the accused by a friend. She arranged the deal telephonically from Masvingo and asked a relative to inspect the vehicle in Bulawayo. Upon satisfaction her brother paid the accused by cheque. She gave the accused particulars over the phone. She collected the vehicle through Mrs Roselyn Masuku.
Charles Gombakomba – He is employed by Mazda Willowvale Industries. They keep the chassis numbers, colour and engine numbers of each car that they assembled. They only obtain the registration number after the sale of the vehicle. These returns are done by their agents. For the vehicle in the count their records show it was
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assembled by them with engine number F8W02666. The chassis number UW I [for B1800] 2215. The colour was ivory. The dealer it was sold to was AMTEC.
Vongai Togarepi – She said she examined a Mazda B1800 pick-up registration number 687-684G grey in colour. The paint profile revealed that the original colour was cream. The data plate showed that the model B2500 chassis number UW1301303. The engine number was UL 3456201. The original engine was erased and a new one punched onviz VL 356201. She did chemical etching and restored 08656. The chassis number had been erased and a new one punched on, viz, VW 1301303. She did chemical etching in the chassis and restored UW 1102215.
Assessment of Evidence
Count 1
In our view the evidence of Mr Frith and Ms Togarepi is, on the face, contradictory. Chief Superintendent Rubaya said they did not rely on the local Forensic Scientist only but also got assistance from other experts in the region. There is no evidence what this assistance comprised of and its relevance on the resolution of this contradiction. Mr Musonah, for the state tried to submit that we should rely on the complainant’s evidence of identification and hold that the experts were mistaken. We do not share this view which we suspect is based more on convenience than logic. In our view both Mr Frith and Ms Togarepi are correct. The probable explanation for the apparent contradiction is a motor vehicle is made up of different components which can be separated, stripped and substituted. In this count it means the shell of the car belongs to Mr Frith but certainly not the engine. The engine and the data plates were “imported” or fitted into Mr Frith’s vehicle body. The vehicle was stolen
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in December 1998 and the accused gave it to Charles Muringani in February 1999 to sell on his behalf. We believe the testimony of Muringani. The accused was in
possession of a recently stolen vehicle and sold it in Masvingo. The vehicle had its engine and chassis numbers tempered with. Applying the doctrine of “recent
possession” a reasonable explanation is expected from him and none came our way. We are satisfied that evidence in this count established the guilt of the accused beyond any reasonable doubt and we find him guilty as charged.
Count 2
In this count the state did not call the complainant to testify. The fact that a complainant is not called does not necessarily mean that a charge of theft is not sustainable. Theft may be sustainable in cases where the complainant is unknown to
the prosecutor provided there is sufficient evidence of theft and also depending on the nature of accused’s defence. In this count and also in other subsequent counts were evidence of the complainants was not adduced, the identity of the alleged stolen vehicles is a hotly disputed issue. In this count the evidence of the Forensic Scientist Ms Shamu clearly shows that the original engine and chassis numbers were tampered with. They were erased and substituted with new ones matching the information on the data plates. This, in our view, in all counts, explains why the vehicles were cleared by the police. The expert only restored the original numbers after chemical etching which those who were clearing the vehicles did not have access to.
This is the vehicle that the accused sold to Mr Titterton through the agency of Muringani. There is no sufficient evidence adduced by the state to sustain a charge of theft. We, however, hold the view that the evidence establish a contravention of
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section 12 (2)(b) of the Miscellaneous Offences Act [Chapter 9:15]. Section 218 of the Criminal Procedure and Evidence Act [Chapter 9:07] makes a contravention of
section 12(2) supra, a competent verdict on charge of theft so there was no need for the state to charge it in the alternative. Section 12(2)(b), supra, provides –
“(2) Any person who –
-
is found in possession of, or
-
has been in possession of;
any goods of any description in circumstances which give rise, either at the time of the possession or at any time thereafter, to a reasonable suspicion that at the time of such possession the goods were stolen and
who is unable at any timeto give a satisfactory account of his possession shall be guilty of an offence.” (emphasis added)
In this count the accused was not found in possession of vehicle at the time of the arrest but there is credible evidence that he had been in possession of the vehicle and sold it in suspicious circumstances i.e. with the key identification features, being the engine and chassis numbers having been tampered with. He has failed to give a reasonable account of such possession, and we find him guilty of contravening section 12(2)(b) of the Miscellaneous Offences Act supra.
Count 3
In this count the evidence of identification of Petros Khumalo is not safe to rely on. But as in count 2 the accused had in his possession a motor vehicle in similarly suspicious circumstances. For the record, we are dealing with the suspicion harboured by the investigating team. The testimony of officers Rubaya and Mpofu
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clearly show that they suspected that the accused was dealing in stolen vehicles and in each case they explained the basis of the suspicion. They followed up the accused’s
explanation and, in their view found them to be untruthful. We similarly find the accused guilty of contravening section 12(2)(b) supra.
Count 4
We are not satisfied with the identification of Ryan Sargant but as in count 3 there is sufficient evidence to convict the accused for contravening section 12(2)(b) supra.
Count 5
The complainant was not called. As in count 2,we are satisfied that the evidence established the guilt of the accused for contravening section 12(2)(b) supra.
Count 6
In this count the state called the complainant’s friend, one Proctor. His evidence is of no assistance in regard to identification. As in count 2 the other evidence which establish the guilt of the accused for contravening section 12(2)(b) supra.
Count 7
We hold the view that we cannot safely rely upon the evidence of the identification by Mr Msindo. As in count 3, we feel there is, however, sufficient evidence to establish the guilt of the accused for contravening section 12(2)(b) supra.
Count 8
As in count 3 we do not find the identification of the vehicle by Mavis Nkomo safe to rely upon. We, however, hold the view that there is sufficient evidence to convict the accused of contravening section 12(2)(b) supra.
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Count 9
The identification of tinted window is not safe to rely upon. We find the identification of Boas Masinire insufficient. We however find that the other evidence is sufficient to convict the accused for contravening section 12(2)(b) supra.
Count 10
As in the above counts, the evidence of identification is not safe to rely upon, but there is sufficient evidence establishing the guilt of the accused for contravening section 12(2)(b) supra.
Count 11
In this count the wreck was broken into parts. Mohammed Zoolay bought the body and the accused said he bought the engine. The issue, in such circumstances, is who is entitled to use the registration book in the scenario where both the one who bought the body and the on who bought the engine decide to re-build. Even if we rule that
the one who has the body is the one entitled to use the registration book, this dos not make the accused’s conduct criminal, suspicious maybe, but suspicion alone cannot found a conviction no matter how strong that suspicion is. In this count there is insufficient evidence even on competent verdicts. Accordingly, we find the accused not guilty.
Count 12
There is no complainant who testified. The accused’s alleged involvement in the crime has not been clearly shown by evidence. The accused is entitled to the benefit of doubt and he is found not guilty.
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Count 13
In this count we are satisfied with Ms Millar’s identification of the vehicle. Not much had been changed in the vehicle. The distinguishing features were still in existence at the time the vehicle was recovered. Although there is evidence of tampering chemical etching could not restore original numbers. There is no
contradiction in her evidence and that of the Forensic Scientist. In this count we find the accused guilty as charged of theft.
Count 14
In this count we are of the view that we cannot safely rely upon identification evidence of Elliot Ncube. Like with other such complainants, although the evidence is generally credible and plausible there is a possibility of a genuine error on the question of identification. There is however, sufficient evidence to find the accused guilty of contravening section 12(2)(b), supra.
Count 15
In this count Paul Denton positively identified the vehicle by engine and chassis numbers which had not been changed at the time of recovery. This is the vehicle that the accused concealed at his in-laws residence. His explanation is that he was trying to conceal matrimonial assets in his divorce case. It seems to us he concealed the vehicle not from his erstwhile wife but from the police. We find the accused guilty as charged.
Count 16
We are not satisfied that we can safely rely on the identification of Stanley Ndlovu in this case. The original colour profiled by the Forensic Scientist differs from his.
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There is, however, sufficient evidence to convict the accused for contravening section 12(2)(b), supra.
Count 17
The major feature of Mr Margerson’s identification is a self tapping screw which was used in the vehicle. We are not satisfied with this form of identification. There is,
however, sufficient evidence which established that the accused contravened section 12(2)(b), supra.
Count 18
The complainant was not called. As in such cases above there is sufficient evidence that the accused contravened section 12(2)(b), supra.
Count 19
In this count the evidence of the complainant was not adduced. There is, however, sufficient evidence that the accused contravened section 12(2)(b), supra.
Count 20
We are not satisfied with the quality of the testimony of the key witnesses. The key witness representing the complainant cannot be traced. The people who caused the arrest of the accused did not impress us as reliable witnesses. It would not be safe to convict on the basis of such evidence. Even on the competent verdict there is a problem as the matter was not investigated by the Bulawayo Investigating Team so their suspicion is not relevant in this count. In any event they rightly declined to say that they harboured any suspicion in this particular count.
Before concluding we wish to highlight some areas of concern which require looking into by the appropriate authorities. Firstly, the vehicles in most of these charges were given back to alleged complainants on the basis of very weak form of
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identification as shown in our judgment. The release defeated the very object of taking exhibits in the first place. This action also affects the rights of innocent purchasers (in casu they purchased after the vehicles were cleared by the police). There were disputes on the identification of these vehicles and the problem was that the complainant would have had exclusive custody of the disputed vehicles for a
period of time, some as long as a year. Evidence may easily be manufactured by dishonest witnesses in such cases. The Forensic Scientists also required the said vehicles to do chemical etching if the court so required. No one seems to own this apparent error. Secondly, it became clear that the investigating team left out some crucial documents in the licensing and registration of vehicles. According to Mr Nduku from CVR the important source documents i.e. the original application, the Customs Clearance, Police Clearance can easily be traced at National Archives and ZIMRA.
Thirdly, from the testimony of the state witnesses a number of original documents such as registration books, a licence disc were handed to the police and were misplaced before the commencement of the trial. Such documentary evidence must be preserved in a satisfactory manner. Fourthly, because of the problems of witnesses we heard the testimony in unusual manner where some witnesses would testify in the middle of the evidence by another. We accepted this for convenience purposes but this should not happen at this level and in such serious cases.
Accordingly, we find as follows:-
Count 1 - Guilty as charged
Count 2 - Guilty of contravening section 12(2)(b) Miscellaneous Offences Act, supra
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Count 3 - Guilty of contravening section 12(2)(b) of Miscellaneous Offences Act
Count 4 - Guilty of contravening section 12(2)(b) of the Miscellaneous Offences Act
Count 5, 6, 7, 8, 9, 10 - Each guilty of contravening section 12(2)(b) Miscellaneous Offences Act
Count 11 and 12 – Each not guilty and acquitted and discharged
Count 13 - Guilty as charged
Count 14 - Guilty of contravening section 12(2)(b) Miscellaneous Offences Act
Count 15 - Guilty as charged
Count 16, 17, 18 and 19 - Each guilty of contravening section 12(2)(b) of the Miscellaneous Offences Act
Count 20 - Not guilty and acquitted and discharged.
Attorney-General’s Office state’s legal practitioners
James, Moyo-Majwabu & Nyoni, respondent’s legal practitioners
