Judgment No. HB 116.14
Case No. HCAR 1245/14
CRB No. INY 135/14
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 24 JULY 2014
MOYO J: The accused person was charged with and convicted of theft (general deficiency) as defined in section 113 (1) (a) of the Criminal Law Codification and Reform Act [Chapter 9:23]. The accused was thus sentenced to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition the accused person is not convicted of any offence of which dishonesty is an element for which accused would be sentenced to imprisonment without the option of a fine. A further 12 months imprisonment was suspended on condition the accused person performs 420 hours of community service at Nguboyenja Zimbabwe Republic Police (ZRP) Camp. The remaining 6 months imprisonment was suspended on condition the accused person restitutes the complainant a total sum of $1026-00 by 30 September 2014.
The facts of the matter are that the accused person was employed as a shopkeeper at Durban Mine Business Centre. She received stock for trade. On the 17th of January 2014, a stocktake was conducted by the accused’s superiors in accused’s absence and stock amounting to $1026-00 could not be accounted for. It was alleged that accused was the sole custodian of the keys to the shop and therefore was solely responsible for the general deficiency in stock or alternatively that she failed to account for the inadequacy in the stock.
The accused person’s defence was that she could not be held to be solely responsible for the deficiency as she was not the sole person that dealt with the stock at the shop. The accused person alleged in her defence that the shop owner’s wife and some trainees would also access the shop and sell stock therein. The first state witness Sanelisiwe Masibi upon being asked by the Prosecutor that in fact the accused stated that she could not be solely responsible for the short fall as the complainant’s wife and some trainees were also handling stock, she responded thus:
“It is not true the complainant’s wife would cause everything she took from the shop to be recorded and trainees are under her supervision.”
This is the same witness who stated that she was not involved in the day to day occurrences at the shop but only come in to balance books as there was as shortfall. How then can she exonerate the complainant’s wife and the trainees in this manner? The shop-owner himself one Mark Harold Ncube also gave evidence and upon being asked of accused’s assertion that she could not to held solely liable for the shortfall as his wife and trainees also handled stock in the shop he responded thus:-
“Accused is solely in charge of stock. Anyone handling stock in the shop did so with her permission. That is the golden rule of the company.”
This answer is clearly skirting the issue of complainant’s wife possibly having created the shortfall, for it is difficult to envisage a situation whereby the complainant’s wife being the boss of the accused person would do everything she did in the shop under accused’s authority. As long as complainant’s wife did interfere with stock and had trainees under her supervision in the same shop that accused was manning it becomes difficult to find that accused was in control of such a situation and therefore solely responsible for deficiencies in stock. The trial magistrate in her ruling found that the accused’s assertion that some people would sometimes assist in the shop and hence she could not be held responsible for the deficiency, to be an unproven fact. One wonders on what basis since the evidence of the state witnesses that I have quoted above clearly shows that the complainant’s wife and the trainees would sometimes deal with the stock although both witnesses sought to put the blame for the deficiency solely on the accused person.
The question that follows therefore is; can the accused person be held to be solely responsible for the shortfall in these circumstances? General deficiency or failure to account for property in one’s custody, in my view can only be satisfied where clearly the accused person can not point fingers at a third party. In these circumstances where the complainant’s wife and some trainees also had access to the shop and the stock and would sell in the same shop with accused, it can not be found that the accused person was solely responsible for the shortfall beyond any reasonable doubt.
I am unable to confirm this conviction for the aforestated reasons. I accordingly order as follows:-
1) The conviction is set aside.
2) The trial magistrate is to recall the accused person and advise her to immediately stop performing community service at ZRP Nguboyenja.
3) The order for restitution is accordingly set aside and if the accused person has paid any sum towards the restitution, such sum should be refunded to her forthwith.
Takuva J agrees................................................................