Judgment No. HB 128/2002
Case No. HCA 64/2002
CRB 5200/99
PARTY MHLANGA
Versus
THE STATE
IN THE HIGH COURT OF ZIMBABWE
CHIWESHE & CHEDA JJ
BULAWAYO 30 SEPTEMBER & 7 NOVEMBER 2002
Ms A. Masawi for the appellant
Mrs I. Nyoni for the respondent
Criminal Appeal
CHEDA J: This is an appeal against conviction by the magistrates’ court,
Bulawayo. The brief facts according to the state are that appellant bought a pick-up
truck at a public auction, which pick-up used to belong to Vita Foam. Sometime in
September 1999 appellant stopped Vita Foam employees in the city centre as they
were travelling in a company car clearly marked Vita Foam. He introduced himself to
the two employees as P Tshuma an Insurance Assessor with NICOZ Insurance
Company. He further advised them that he wanted to come and collect a canopy for
the accident damaged truck which he was then driving.
Mr P Ndlovu who was then driving the Vita Foam motor vehicle invited him
to come to the company premises to collect the canopy. Appellant subsequently went
to Vita Foam still holding out as an insurance assessor and collected the canopy.
Complainant later discovered that appellant was in fact not an insurance
assessor and was not P Tshuma, a report was then made to the police whose
investigations subsequently led to his arrest. The value of the canopy was $20 000
and was recovered.
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The state called P Ndlovu whose evidence was that he was employed by Vita
Foam as a foreman. On the day in question he was driving a motor vehicle clearly
inscribed with Vita Foam letters when appellant stopped him. Appellant then
introduced himself as a P Tshuma an employee of NICOZ and further stated that they
had bought the pick-up vehicle which he was driving and they had since repaired it.
Appellant went further to state that they had left the canopy behind and he wanted to
Collect it. The witness believed him and advised him to come and collect it, which
he did.
The next witness was Billy Moyo who was in the company of the 1st witness
on the day in question. His evidence is in all fours with that of the first witness.
The next witness was Charles Green who is employed as a Distribution
Manager by Vita Foam. He told the court that the pick-up in question was once
involved in an accident to an extent that it was a write off which resulted in them
handing it over to NICOZ Insurance Company, but before they did so, they removed
the canopy as it was not insured by NICOZ. He discovered that the said canopy was
missing from their workshop when he wanted a better canopy between the two which
were in the workshop. He was then advised by P Ndlovu the 1st witness that the
canopy which had been removed from the accident damaged pick-up had been taken
by Mr Tshuma of NICOZ. Investigations were carried out which led to the arrest of
the appellant. However, efforts to take the canopy from the appellant was met with
stiff resistance but it was eventually recovered through police intervention.
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The last witness was Henry Tshuma the Regional Manager for NICOZ. His
evidence was that he did not know the appellant and had not directly dealt with
NICOZ neither did he know where they operated from. It was further his evidence
that according to the police report and that of Quicks, the towing company, the said
pick-up did not have a canopy. The state closed its case.
The appellant gave evidence in his defence. He stated that he was a Director
of Skyline Taxis and that he was in the business of buying salvages from insurance
companies and had been doing so for ten years. It is also his evidence that when he
met P Ndlovu in the city centre he advised him that he had bought the motor vehicle
which he was driving and went further to enquire as to whether there were any other
accessories that had been left behind. P Ndlovu is said to have replied that there was
a canopy, a jack and a spanner but the spare wheel could not be located or found. He
denied misrepresenting that he was P Tshuma from NICOZ.
It was the finding of the court a quo that the state’s witnesses gave their
evidence very well and where therefore credible. In fact Messrs P Ndlovu and Billy
Moyo collaborated each other in all material respects and I find no reason to interfere
with the trial court’s assessment of their evidence. The appellant’s evidence was very
far from convincing. He met these witnesses in the city and deceived them into
believing that he was entitled to a canopy which was at their workshop. He denies
misrepresenting himself as P Tshuma of NICOZ. What remains unclear is why he
was not keen to return the canopy to the complainant when called upon to do so. His
behaviour, in my view, is that of a person with a guilty mind, otherwise the most
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noble thing to have done was to merely take back the canopy and have the matter
resolved amicably. He, however, resisted both the surrender of the canopy and was
not prepared to listen to the voice of reason. His explanation for his behaviour is
to say the least strange and cannot be believed as being any way near the truth. The
fact that it had to take the police to recover the canopy speaks volumes of his guilty
mind and his intention to benefit from this ill gotten property. Appellant certainly did
not behave like an honest person. There is no good reason why Messrs P Ndlovu and
Billy Moyo would have lied against him.
The suggestion by Ms Masawi his legal practitioner that P Ndlovu lied in
order to cover up for his error and/or inefficiency which ultimately led to the release
of the canopy is without merit in my view for the reason that when asked by his
superior Mr Green he innocently advised him that the canopy had been collected by
Mr Tshuma of NICOZ. If indeed he wanted to lie he would have found any other
reason to justify his erroneous release of this canopy.
I find that the court a quo properly assessed all the evidence by the witnesses
and objectively concluded that the state witnesses were credible and convincing
while the appellant was an unsatisfactory witness who failed to give a reasonable
explanation of his conduct. His refusal to voluntarily hand over the canopy which he
purports to have genuinely obtained from the complainant buttressed both his state of
mind and actions when he confronted the complainant and Billy Moyo on the day in
question.
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I find no misdirection on the trial court’s finding and accordingly the appeal
against conviction is dismissed.
Chiweshe J …………………. I agree
Lazarus & Sarif appellant’s legal practitioners
Attorney-General’s Office respondent’s legal practitioners