1

HH 372-15

CA 54/14

GEDION BALOYI

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & BERE JJ

HARARE, 21 October 2014

Criminal Appeal

M Hogwe, for the appellant

T Mapfuwa, for the State

BERE J:  After a trial the appellant was convicted of contravening para 35 of the schedule to the Police Act, [Cap 11:10] as read with s 29 and 29A (1) (b) of the same Act, that is, acting in a manner prejudicial to good order or discipline or reasonably likely to bring discredit to the police force.”

            The appellant was sentenced to one year imprisonment of which 3 months were suspended for 5 years on condition of future good conduct.

            Aggrieved by both the conviction and sentence the appellant noted the instant appeal.

            Although there appears to be several grounds of appeal against conviction, it is clear that the main concern raised in the appeal is that the court a quo convicted the appellant on the basis of evidence which had glaring inadequacies and inconsistencies.

            As for sentence, the appellant contents that in the event that the conviction is upheld, this court must find that the sentence imposed is so severe as to induce a sense of extreme shock given the compelling mitigating factors.

            The facts which are not in dispute in this case are that one Batsirai Mupindu entered into a transaction involving the sale of his chickens to T.M. Supermarket with Nevermind Kufakunesu (“the suspect”) who was registered to supply chickens to the supermarket.

            Once the transaction went through, the suspect reneged on his contractual obligation to pay Batsirai Mupindu resulting in the latter reporting a case of fraud to the police against the suspect.  The matter ended up with Criminal Investigation Department serious frauds department but the suspect disappeared before the matter could be concluded.

            The appellant was accused of having masterminded the suspect’s abortive prosecution.  The allegations against him were that it was him who instructed or influenced the investigating officer not to detain the suspect.

            The appellant denied the allegations levelled against him.  However, the learned magistrate found against him leading to the subsequent conviction and sentence.

            The record of proceedings will show that the State case was built around the evidence of four witnesses, viz Batsirai Mupindu (the complainant in the fraud case), Sergeant Benjamin Mubhawu (who was the investigating officer), Assistant Commissioner Samson Mangoma and Chief Superintendent Alison Nyamupaguma.

            The appellant’s case was supported by the appellant himself, Detective Inspector Masara (the O.I.C. of C.I.D. Serious Frauds Section) and a police officer by the name Sithembile Mhlanga.   

            It occurs to me that in order to fully establish the allegations to the accepted threshold of proof beyond a reasonable, it was imperative for the investigating officer in this case Benjamin Mubhawa to prove that the appellant had interfered with him in the course of his investigations or specifically instructed him not to detain the suspect.

            A proper reading of the evidence of the investigating officer’s testimony clearly shows that he was advised by Detective Inspector Masara not to charge the suspect but the company that was represented by the suspect in his transaction with the complainant.  Not only this, but the investigating officer went on to state in his evidence that he was instructed by Masara to release the suspect.  See record pp 42 & 43.

            Even in his own testimony in support of the appellant’s case, Masara confirmed that it was him who suggested to the investigating officer that since the suspect was a representative of the company, he was not only supposed to be kept in cells but also that the suspect be charged as a representative of his company which had transacted with the complainant in that botched transaction.

            The complainant himself was not helpful in bringing incriminatory evidence against the appellant.  The complainant, whilst alluding to some telephone or cellphone conversation between the appellant and officer Nyamupaguma was not clear as to what exactly the appellant said.  The nearest the witness disclosed was that the appellant gave the assurance that the suspect would return when required since he was his brother -in- law. 

            The witness also made reference to a telephone or cellphone conversation between the appellant and Assistant Commissioner Mangoma who incidentally appeared to being the investigating officer and not the appellant.  Where he attempted to blame the appellant, his evidence was loaded with hearsay.

            More importantly, Chief Superintendent Alison Nyamupaguma did not say in his testimony that he heard the appellant instructing the investigating officer not to detain the suspect, except  that the appellant said he knew the suspect and that he would return when required.  To me, this cannot possibly amount to violating the cited sections which the appellant was alleged to have contravened.  The appellant ought to have done more than this.

            Although Nyamupaguma tried to portray the appellant in bad light, the record of his testimony clearly shows that what appeared to be incriminatory testimony was nothing but hearsay evidence.  See record pp 55-56.

            Perhaps the most telling evidence was that of the investigating officer Benjamin Mabhawu.  He confirmed that by the time the appellant allegedly telephoned him, the suspect had already been released.  If this is accepted (as it should be) then the alleged calls by the appellant were inconsequential.

            The following questions and answers from the appellant and the investigating officer tend to show the appellant’s innocence beyond doubt.

“Q.      When I called to enquire if you were the Investigating Officer  I was with Nevermind Kufakunesu when we had come to lodge his complaint on the first day I met him.  

A.        That is not correct.  You only called me once on the 8^th.

Q.        So what came first, the release of Kufakunesu or my call.

A.        The release came first.

Q.        So our call is not what caused Nevermind Kufakunesu to be released.

A.        Yes, because since our conversation Kufakunesu never came.

Q.        So we agree that the release came first before I called you.

A.        Yes.

Q.        So how am I coming in with regards to the release of the accused.

A.        The question should be directed to Investigating Officer of the matter.

Q.        So when I spoke to you, you no longer had the accused so it was impossible for you to release him as a result of my call.

A.        Yes.”[1]

            It was very ironic that this witness was saying certain questions would require to be dealt with by the Investigating Officer when he was in fact the Investigating Officer.

            A further reading of this witness’s testimony will show that he acted not on the instructions of the appellant but on the specific instructions of Detective Inspector Masara, something which was confirmed by Masara himself.

            Whichever way one looks at the evidence adduced in this case, it cannot be concluded that the State proved its case beyond a reasonable doubt.

            This is a case where the learned magistrate clearly laboured under the erroneous view that the accused’s guilt had been established beyond reasonable doubt.  The record simply does not support this finding.

            The appellant is found not guilty and acquitted.

HUNGWE J agrees:………………………………….

Hogwe, Dzimirai & Partners, Appellant’s Legal Practitioners

National Prosecuting Authority, Respondent’s Legal Practitioners