S v Zulu (CA 477 of 2016; HH 71 of 2017) [2017] ZWHHC 71 (1 February 2017)

1 HH 71-17 CA 477/16 GILBERT ZULU versus THE STATE HIGH COURT OF ZIMBABWE CHATUKUTA & MUSAKWA JJ HARARE, 1 February 2017 Criminal Appeal MUSAKWA J (in chambers, in terms of s 35 of the High Court Act): The National Prosecuting Authority filed a notice in terms of s 35 of the High Court Act [Chapter 7:06] to the effect that it does not support the appellant’s conviction and gave reasons for such concession. Having found that the concession was properly made, we set aside the conviction and sentence, having removed the matter from the roll. The appellant was convicted of contravening s 131 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 24 months’ imprisonment of which 6 months’ imprisonment was suspended on condition of paying restitution to the complainant. Appeal was noted against conviction and sentence. The Charge and Facts The charge alleged that between 26 and 28 October 2013 and at Zimbabwe Fertiliser Company (ZFC), Banket the appellant intentionally and without authority broke and entered the warehouse from which he stole goods valued at $10 695.00. According to the outline of state case the appellant committed the offence with five other named persons. The stolen items were loaded in a motor vehicle and taken to a house in Chinhoyi for safe-keeping whilst the appellant sourced buyers. The stolen goods comprised of oil and fertiliser. According to the outline on 30 October 2013 Police detectives arrested one Itai Chiguswa who was in possession of 4x5l G. T. X oil. Itai Chiguswa then implicated the appellant and led to the recovery of 12 boxes of Castrol oil from the safe house. The appellant was further implicated by Bonny Mabhuku who had been arrested as well. HH 71-17 CA 477/16 Appellant’s Defence The appellant’s defence was a denial of the charge. He claimed to have been asleep at home when the offence was committed. Police officers visited his house on 26 October 2013 and arrested him. They conducted a search but did not find any items. The Evidence Bonny Mabhuku’s evidence was that he was hired to transport goods that were at a bus stop in Banket. His friend Takudzwa Chamboko is the one who had called him in connection with a client who wanted his goods to be transported. After three days he was arrested. He claimed not to have recognised the person who hired him as it was at night. The witness did not know the appellant. He only saw him for the first time at court as he was named as the person who had committed the offence. As for where the stolen items were stashed, Rachel Mupande testified that his brother in-law, Robert Herbert knocked on her door when she had retired for the night. He advised her that he was leaving something in the house. She established that he was in the company of others and that a motor vehicle had been used. In the morning she found a box which had oil. She informed her husband. Later Robert Herbert collected some of the oil. Shortly thereafter Police officers arrived and they were taken to the Police Station. She did not know about Robert Herbert’s whereabouts at the time she testified. However, it turns out that Robert Herbert. Robert Herbert had a room which he used at the house before he got married and he still had his items there. Rachel Mupande stated that she did not know Bonny Mabhuku. Evidence from a Police officer, Vincent Mabido was to the effect that having received information they went to a garage in Chinhoyi. There they saw Itai Chigusiwa and Robert Herbert selling engine oil. Robert Herbert fled from the scene. Itai Chigusiwa stated that he was selling the oil on behalf of the appellant and Robert Herbert. Itai Chigusiwa led them to house number 30 Brundish where they interviewed Rachel Mupande. They also recovered 15 boxes packed with oil. There were price tags for ZFC. When they arrested Bonny Mabhuku he implicated that appellant and Robert Herbert. They subsequently arrested Robert Herbert. According to the Police officer the appellant was evasive. The appellant had been contacted on his cell phone and subsequently switched it off. Robert Herbert testified on breaking into a ZFC shop in Banket whilst in the company of one Zulu and stealing engine oil which they took to house number 7330 Gunhill Extension, HH 71-17 CA 477/16 Chinhoyi. He confirmed being intercepted at a garage where they were selling some of the oil. Surprisingly he simply confirmed being arrested without stating that he had initially escaped. He denied having been in the company of the appellant, simply stating that he was with one Zulu who was not the appellant. Disposition It was from this paucity of evidence that the trial court convicted the appellant. It is apparent that none of the state witnesses gave any evidence that incriminated the appellant. In dealing with the aspect of degree of proof the trial court referred to G. Feltoe in Magistrates Handbook in which the learned author at p 94 stated that- “Proof beyond reasonable doubt does not mean proof to an absolute degree of certainty….. It means a high degree of probability. The State does not have to close every avenue of escape… The question which needs to be asked is: do all the facts taken together prove guilt beyond reasonable doubt? Even a number of lines of inference, none of which would be decisive, may in their total effect lead to there being proof beyond reasonable doubt.” In convicting the appellant, the trial court placed much reliance on the evidence of Bonny Mabhuku and Robert Herbert. It must be noted that during his testimony Bonny Mabhuku never implicated the appellant. The same applies to Robert Herbert who simply stated that he committed the offence whilst in the company of Zulu. What is critical is that Robert Herbert denied that the Zulu in question was the appellant. On the other hand the evidence of Vincent Mabido in relation to what Bonny Mabhuku told them during investigations amounts to hearsay. If the trial court had properly applied the excerpt from Professor Feltoe, it should have come to the conclusion that the evidence before it did not amount to a high probability that the appellant was involved. What the evidence amounts to is just a suspicion that the appellant may have been involved. This was only sufficient for purposes of placing the appellant on remand. A major flaw in the judgment of the trial court is that there was no meaningful analysis of the facts and the application of the law to the facts. As was held by UCHENA J in S v Tambo 2007 (2) ZLR 33 (H) at 41- “The correct judicial assessment of evidence must be based on establishing proved facts whose proof must be a result of a careful analysis of all the evidence led. The final result must be a product of an impartial and dispassionate assessment of all the evidence placed before the court. The judicial officer’s duty is to determine the issues before him one way or the other guided by the evidence which he must critically examine.” HH 71-17 CA 477/16 There are two other blemishes in the matter. It is quite clear from the evidence of Robert Herbert that he is an accomplice (actually a co-perpetrator). Although it was apparent to the trial court, s 267 (1) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides for the prosecutor to inform the court of the accomplice status of such a witness. It is not even clear whether the witness had been convicted or not. In such a scenario, the trial court was expected to warn the witness to be truthful in his testimony. In this respect see S v Ngara 1987 (1) ZLR 91 (S). Ultimately, in its judgment the trial court failed to warn itself of the dangers of Robert Herbert’s testimony. The other blemish is that notwithstanding the trial court’s finding that Bonny Mabhuku and Robert Herbert’s credibility was questionable, it nonetheless relied on their testimonies in convicting the appellant. This is notwithstanding an observation by the trial court that these witnesses were contradictory in their testimonies. The moment the court entertained doubts about the witnesses’ credibility it could not have reached the conclusion that the case had been proved beyond a reasonable doubt. This was particularly so when the court a quo placed heavy reliance in their testimonies. It may well be the case that Bonny Mabhuku and Robert Herbert departed from their previous statements to Police. In fact the court a quo got the impression that the two witnesses could have been hostile. That being the case the prosecutor was best placed to determine what course of action to adopt in the event of the witnesses having departed from their previous statements. If the departure was material, then it was incumbent upon the prosecutor to seek the impeachment of the witnesses in terms of s 316 of the Criminal Procedure and Evidence Act. Again, the likely deviation by the two witnesses serves to highlight that the case for the State had loopholes that militated against a conclusion that it had been proved beyond a reasonable doubt. It is for these reasons that we found the concession by the State to be proper and we allowed the appeal. CHATUKUTA J agrees