IN THE HIGH COURT OF ZIMBABWE
MAKONESE & TAKUVA JJ
BULAWAYO 9 FEBRUARY & 9 JULY 2015
B. Dube for the appellant
T. Hove for the respondent
TAKUVA J: This is an appeal against conviction and sentence. The saying that “a drowning man will clutch at a straw” aptly describes appellant’s conduct in casu. The appellant was convicted by a Regional Magistrate sitting at Gweru. He was convicted of:
“(1) Contravening section 60(A) (3) (b) of the Electricity Act [Chapter 13:19] ‘Any person who, without lawful excuse, the proof whereof shall lie on him or her cuts, damages, destroys or interferes with any apparatus for generating, transmitting, distributing or supplying electricity’. In that on the 12th day of February 2010 and along a railway line at Sherwood area, Kwekwe, both Mthulisi Nkomo and John Sikiza or one or more of them unlawfully tampered, cut, damaged, destroyed or interfered with National Railways of Zimbabwe power line which generates, transmits, distributes or supplies electricity in contravention of the said Act.
(2) Contravening section 170 (1) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In that on the 12th day of February 2010 and at 195km peg along the Kwekwe – Harare road, Kwekwe, Mthulisi Nkomo unlawfully offered a gift or consideration to an agent named Felix Hleza who is an employee of the National Railways of Zimbabwe, as inducement or reward for doing or for not doing an act in relation to his principal’s affairs or business, that is to say Mthulisi Nkomo offered US$1 300,00 to Felix Hleza as an inducement or reward for setting him free after Mthulisi Nkomo had been arrested for theft of NRZ copper conductors. When Mthulisi Nkomo offered the gift or consideration, he knew or realised that there was a real risk or possibility that it was not due to Felix Hleza in terms of any agreement or arrangement between Felix Hleza and his principal, the National Railways of Zimbabwe”.
The facts appear fully in the state outline. In brief they are as follows:
On 11 February 2010, the appellant and one John Sikiza connived to steal NRZ copper conductors at Sherwood siding, Kwekwe. The two who were travelling in a Hyundai truck white in colour bearing South African registration numbers YHT 097 GP driven by the appellant arrived at Sherwood around 2300 hours. Immediately upon arrival, they started cutting off copper conductors loaded them into the truck and left towards Kwekwe. Meanwhile two NRZ security personnel on guard duties in the area saw appellant and his accomplice and reported their presence and nefarious activities to their superior one Felix Hleza by cellphone. Hleza instructed the two guards to barricade the road at a bridge across the canal along the sole route to the area. The two guards did the same by placing concrete blocks across the road and one of them Douglas Gabaza laid an ambush at that place for purposes of recording the vehicle’s registration number.
When the vehicle got to the bridge the appellant tried to avoid the concrete blocks and in the process plunged into the canal, damaging the vehicle oil sump in the process. Appellant stopped and off loaded some of the bundles of copper conductors. The two then pushed the car towards the Harare – Kwekwe highway. Meanwhile, the two security guards phoned Hleza and gave him the vehicle’s description and registration numbers. Hleza drove along the Kwekwe – Harare road and spotted the appellant and his accomplice at the 195km peg where they were offloading more bundles of the copper conductors from the vehicle. Hleza, who was in the company of Chrispen Moyo arrested the two and recovered 6 bundles of copper conductors, 3 on the ground while the rest were in the vehicle.
Before the police arrived, appellant offered $1 300,00 to Hleza as an inducement to set them free. When the police arrived, Hleza handed over the money to them. The copper conductors weighed 1 320kg and are valued at US$19 000,00. Appellant and his accomplice had earlier led the police to a place where they had offloaded 60 bundles of copper conductors after their vehicle had developed a mechanical problem. Hleza positively identified the conductors as property belonging to the National Railways of Zimbabwe. The trial was delayed for 2 years when appellant and his accomplice defaulted and remained on the run after the State and only led evidence from two witnesses. Trial proceeded after appellant had been re-arrested. His accomplice is still on the run. The appellant was convicted as charged and sentenced to 10 years imprisonment in respect of the 1st count and to pay a fine in the sum of $200,00 or in default of payment 2 months imprisonment in respect of the second count. The $1 300,00 was forfeited to the State.
Appellant has appealed against conviction and sentence on the following grounds:
“(1) The court a quo erred in convicting the appellant when there was no sufficient evidence to that effect.
(2) The court a quo erred in convicting appellant when the evidence by state witnesses was contradictory.
(3) The court a quo erred in convicting appellant when his defence was not rebutted during the trial.
(4) The court a quo erred in convicting appellant when the State failed to prove its case beyond reasonable doubt.
(1)The sentence of 10 years imprisonment is excessive for the charge of theft.
(2)The court a quo erred in paying lip services (sic) to the mitigatory factors adduced by the appellant.
(3)The court a quo erred in imposing a sentence that is destructive and excessive to a 1st offender …”
The grounds of appeal against conviction are repetitive. Grounds number 1 and 4 amount to the same thing. Considered together, they amount to a conclusion of the law. Therefore essentially there are just two substantive grounds namely grounds 2 and 3.
In his heads of argument the appellant quite robustly submitted that the court a quo erred in accepting as correct the evidence given by railway employees at the expense of the “true and most probable version” given by the appellant. He referred to the following portions of the State witness’ evidence that he claimed to be incredible and not worthy of belief.
- that they saw appellant cutting the wire and rolling it when no cutting equipment was recovered from the appellant.
- that Hleza deployed guards in that area who failed to take action upon realizing that appellant and the other men were destroying railway property.
- that copper cables were recovered in appellant’s vehicle.
- that the copper cables were cut on the day in question and not on the 5th day of February 2010.
- that appellant offered a bribe to Hleza which was spurned.
Widely construed, the criticism of the court a quo is primarily focused on its findings of credibility. The starting point is that the assessment of a witness’ credibility is within the domain of the trial court. In this regard the sentiments of GUBBAY CJ (as he then was) in S v Mlambo 1994 (2) ZLR 410 (S) at p 4 are apposite. He pointed out that “the assessment of credibility of a witness is par excellence the province of the trial court and ought not to be disregarded by an appellate court unless it is satisfied that it defies reason and common sense.”
It is trite that in order to come to a conclusion on the disputed facts, a court must make findings on (i) the credibility of the various factual witnesses; (ii) their reliability and (iii) the probabilities. The court must also evaluate the evidence in its totality and where it relies on probabilities and inferences these must be distinguished from conjecture or speculation.
In casu, the court a quo found state witnesses to be credible. Dealing first with why the court believed the witnesses that the copper cables were cut on the day in question while the guards did nothing about it, and that no “cutting equipment” was recovered from the appellant, it is necessary to examine the material portions of the witnesses’ evidence.
The critical portion of Bruno Masaga one of the guards who witnessed the commission of the crime is that on the night in question he was dropped to patrol the Sherwood area at approximately 2000 hours. At approximately 2300 hours he observed a car travelling along a dusty road parallel to a railway line. He was in the company of Douglas Gabaza another security guard. When the car stopped, two men disembarked, removed some “things” from the back of the car and climbed poles where they started cutting copper cables. He phoned Hleza who instructed them to block the road using railway concrete slippers and record the vehicle’s registration numbers. He waited at the spot and at approximately 0400 hours the car passed and he recorded its registration numbers. Shortly thereafter the car stopped and the two men started offloading copper cables. When he and his colleague moved closer, they were spotted by the two men who dashed into the car and sped off towards the Harare road. He noticed ten copper bundles on the ground where the car had stopped and they guarded it until the police arrived in the company of the appellant and his colleague.
Under cross-examination he maintained his version that he only saw two people cutting and loading copper cables into this motor vehicle. He however gave more details of how the cables were cut by indicating that before he left the scene appellant and his colleague had cut cables between 5 poles and they were continuing. Asked what appellant and his colleague used to cut the cables he said “something like bolt cutters”. When specifically asked by the appellant why they off-loaded the copper his answer was “maybe it was because of the damage to your car”.
This witness’ evidence is a simple story which is corroborated or confirmed by the appellant’s own version. The only point of departure is that relating to the cutting and loading of copper cables. The question then becomes why this witness would fabricate that story. This witness is a mere security guard who is not expected to have understood the difference between mere theft and contravening section 60 (A) of the Electricity Act. Surely if all the appellant had done was to drive to the scene, pick up the copper bundles and drove away the witness would have said so.
Further his evidence is corroborated by the undeniable length of time appellant took from the time his car was spotted to the time of arrest i.e. from 2300 hours to 0500 hours. The question is what was appellant still doing in the area? Another piece of corroborating evidence is the damage to the car’s sump. Appellant does not deny this although he lied that this was about 19km before Kwekwe on the Harare – Kwekwe highway. The truth is he drove his car at high speed after loading the copper and hit the barrier that had been placed on the road. This was also confirmed by oil that was detected on the road from that spot to the highway.
The appellant’s version is a tall story that is riddled with contradictions, improbabilities and inconsistencies. For example, he contradicted himself in the following respect:
- in the warned and cautioned statement he said he had been hired by one Simba whose surname he could not remember. Yet in the defence outline he said he had been hired by “Happy and Simba”;
- in the warned and cautioned statement he said he was hired to “collect matemba for resale” yet in the defence outline he said he was hired to “collect bales from Kadoma to Gokwe and ferry maize from Kadoma”.
- In the warned and cautioned statement he said his car developed mechanical problems when he was driving along the Harare – Kwekwe highway i.e. 19km from Kwekwe, yet in the defence outline he said “he drove and before I reached the Kwekwe/Harare road there were stones on the road. I then tried to drive over the stones and in the process the motor vehicle hit the stones. I told the boys I no longer was proceeding to Kadoma. I turned into the Kwekwe – Harare road, along the road the car stopped. We then pushed the car to a lay bye.” (emphasis added)
The problem with these versions is that both are false and inconsistent. For starters the road appellant traversed on shortly before could not suddenly have “stones” that prevented him from passing without damaging his vehicle. Surely if he had passed this spot on his way to where the cables were, he would not have failed to maneuver his way on the return trip. Also if what he said namely that he simply made a u-turn and drove back, there would have been no time for the guards to barricade the road before he passed. The truth is that there were no stones on the road. The appellant hit the concrete block deliberately placed on the road by the guards.
It is also not true that they started pushing the car when they were along the Harare – Kwekwe road. Instead they started pushing it well before they got to the highway. This explains why he took so long to cover such a short distance.
As regards the absence of a “cutting equipment”, my view is that this has no weight at all. I say so for the simple reason that on the evidence of Masaga, when the occupants of the vehicle noticed the guards’ presence, they rushed into the car and sped off. It is most likely that whatever Masaga described as “bold cutters” were thrown way by the appellant and his accomplice.
The submission that the guards did nothing when copper was being cut is not supported by the evidence. The guards acted as per instructions from Hleza. What appellant fails to appreciate is that there were two teams in operation and each team had its own specific mandate. This submission has no merit.
The other criticism of the court a quo’s assessment of the evidence relates to why that court believed Hleza’s testimony that copper cables were recovered in appellant’s vehicle. In my view, the reason is not hard to find. Hleza said when he arrived at appellant’s car he found 3 bundles on the ground and 3 bundles in the vehicle. This was corroborated by Constable Masvingwa’s testimony. Quite clearly Hleza did not embellish his evidence. If he had planted these exhibits, surely he would have done so by putting all these bundles into the motor vehicle. He had more than enough time to do so before the police arrived. The appellant’s version on this issue, namely that Hleza drove into the bush and brought “six roles of copper” is highly improbable in that if it had happened then Hleza would have brought the entire consignment that was in the bush in order to nail the appellant.
Further, Hleza’s evidence is corroborated on material respects by Constable Farai Masvingwa’s evidence that he not only saw 3 bundles on the ground, but that appellant made indications resulting in the recovery of more than ten bundles in the bush. He also said appellant indicated 5 poles covering a distance of 60m where copper had been cut.
In respect of the bribery conviction, there were to witnesses who gave evidence, namely Hleza and Chrispen Moyo. According to the latter, appellant uttered the following words to him “talk to your boss. I am prepared to pay you if you release us”. The witness told Hleza who in turn asked the appellant to produce the money which he did and he was arrested. Appellant’s version is that he was searched and US$1 300,00 was found upon his person and suddenly the guards said they would tell the police that appellant had bribed them using that money. This story is totally unbelievable and illogical. In my view, the appellant who is an ex-member of the Zimbabwe Republic Police found himself on a sticky wicket and decided to buy his freedom with disastrous consequences.
The grounds of appeal against sentence are irrelevant and misplaced in that the court a quo simply imposed the minimum mandatory penalty. The concept of special circumstances was explained and understood. The court a quo made a finding that there are no special circumstances in this case. I do not find anything that defies reason or common sense in such a conclusion. The appeal has no merit.
Accordingly, the appeal is dismissed in its entirety.
Makonese J ………………………………….. I agree
Gundu & Dube c/o Dube-Tachiona & Tsvangirai, appellant’s legal practitioners
Prosecutor General’s Office, respondent’s legal practitioners