S v Kapetamanja (HB 66 of 2006) [2006] ZWBHC 66 (12 July 2006)

Judgment No. HB 66/06 Case No. HCB 68/06 NEVER KAPETAMANJA Versus THE STATE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 19 JUNE & 13 JULY 2006 T Hara, for the applicant Ms B Sigauke, for the respondent Bail Pending Appeal NDOU J: The applicant seeks bail pending appeal against both conviction and sentence. The salient facts are that applicant was convicted by a Regional Magistrate, Western Division, sitting in Bulawayo of theft from a parked motor vehicle. The vehicle was parked outside premises where a funeral service was taking place. The facts reveal that the complainant parked her vehicle at around 10.30 hours outside house M1 Mzilikazi suburb, Bulawayo. She secured her vehicle by locking all the doors and closed all the windows before she left the vehicle. The applicant and two others allegedly approached the complainant’s vehicle they were travelling in a Ford Sierra vehicle bearing South African registration numbers JSB 253 GP driven by the applicant. The latter vehicle was parked just behind complainant’s vehicle and applicant’s alleged accomplice got out and went to complainant’s vehicle. The applicant remained behind the steering wheel. The accomplices broke the small rear window of the complainant’s vehicle and consequently opened the door. He then moved the backseat and ripped off the portion to the back HB 66/06 and stole a bag containing Z$140 million and B Pula 1 300,00. The accomplice got into their vehicle and the applicant drove off. A witness who witnessed this, Bridget Mpofu said the vehicle sped off from the scene after the theft. from her testimony she opined that the accomplices were acting in common purpose in the commission of the theft. It cannot be gainsaid that this key witness did not see the actual theft from the vehicle taking place, but her evidence placed the applicant and accomplice at the scene and time of crime. They sped off in the vehicle soon after the theft. Thus this circumstancial evidence gave considerable rise to the only reasonable inference that the applicant and his accomplices were responsible for the theft. It is conceded that it is not a crime to be seen milling around a funeral wake, but to be seen directing one’s attention on a particular vehicle in concert and soon thereafter a theft occurs and one denies ever being within that vicinity is another matter altogether. For circumstancial evidence may comprise of a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion, but the three taken together may create a conclusion of guilt with as much certainity as human affairs can require or admit of – R v Exall (1866) 4F & F 922 at 929; R v Thomas (1972) NZLR 34; S v Labuschagne & Anor HB-41-03; S v Shonhiwa 1987(1)ZLR 215(S) and S v Marange & Ors 1991(1) ZLR 244(S). The evidence accepted by the trial Regional Magistrate is highly incriminatory. circumstancial evidence is received in a situation where the occurrence of an act, state of mind or state of affairs in the past justifies an inference that the act was done, or 66/06 HB state of mind or affairs existed at the moment of time into which the court is inquiring. From my reading of the judgment and evidence in this matter, this seems to be the approach adopted by the trial magistrate. It was only under cross-examination that applicant conceded for the first time that he was indeed at the scene of crime and that witness Bridget (supra) correctly identified him wearing a hat, vest, a pair of shorts and tennis shoes. The inference drawn from the proven facts is consistent with the guilt of the accused. As far as sentence is concerned there is a concession that a sentence of ten(10) years imposed by the trial court is on the severe side. It may be so but the sentence suggested by the respondent is an effective of between three(3) and four (4) years. This type of concession does not necessarily impact on the issue of bail pending appeal. The appeal will be finalised long before the applicant serves even the suggested reduced sentence. The applicant has relevant previous conviction of theft from motor vehicle and robbery. With that background, the trial Regional Magistrate cannot be faulted in refusing the applicant bail pending appeal. In such applications the presumption of innocence no longer applies. Here, as outlined above, there are no prospects of appeal succeeding (save for the concession alluded to above). In the circumstances the applicant was properly denied bail – S v Kilpin 1978 RLR 282; S v Tengende & Ors 1981 ZLR 441; S v Williams 1980 ZLR 466 (a); S v Benator 1985(2) ZLR 205 (H); Moodie v S SC-75-90; S v Mavenge HH-1-03; S v Poshai HH-89-03; S v Ncube & Anor HB-4-03 and Bvovongwe v S HB-32-06. Accordingly, I dismiss his application for bail. HB 66/06 T Hara & Partners, applicant’s legal practitioners Criminal Division, Attorney General’s Office, respondent’s legal practitioners