Appeal No. 183/95
TSHUMA v THE STATE
COURT OF ZIMBABWE
JA, MALABA JA & CHIWESHE AJA
JULY 28, 2003 & JANUARY 26, 2004
appellant in person
for the respondent
The appellant was charged before a magistrate in Gwanda with theft,
alternatively with contravening s 14(1)(b)
of the Miscellaneous
Offences Act [Chapter 68]
(now s 12(2)(b) of Chapter 9:15).
She pleaded not guilty to both, but was convicted on the
alternative charge. She was sentenced to pay a fine of $400.00 or,
in default of payment, serve two months imprisonment with labour.
In addition she was sentenced to a further three months
imprisonment with labour which was suspended for five years on
condition she does not, during that period, commit any offence of
which dishonesty forms an element of the charge for which upon
conviction she is sentenced to imprisonment without the option of
fine. She now appeals against conviction only.
case against the appellant was that police, acting on information
received, went to her residence at Johunda Township in Gwanda,
searched the premises and found property that was believed to have
been stolen. The search was carried out in the presence of the
appellants sister while the appellant was away at Beula Health
Centre where she was employed as a State certified nurse.
appellant failed to give a satisfactory explanation of her possession
of the said goods. In her defence outline, she said
she never stole
property from Beula Clinic where she went on relief duties. She
disputed that the property found in her house originated
Rural Health Centre.
evidence led from a member of the Criminal Investigation Department
was that he went to the appellants residence and conducted
search. He recovered the property listed on the indictment, that
is, two green curtains, two yellow curtains, four white sheets,
cotton blankets, ten disposable syringes, four needles, three small
linen sheets, eight gauze bandages, three small towels
a senior clerk at Antelope District Hospital, went to do a stock
check at Beula Clinic and found that the following
missing two long green curtains, three short yellow curtains and
three baby wrappers. She said the property recovered
by the police
was similar to the property missing from Beula Clinic.
said she was the housekeeper at the appellants residence. She
said on a Thursday morning the police arrived
and asked for the
appellant. She told them she had not seen her. On request, she led
them to the appellants bedroom which they
searched and from which
they recovered some syringes and thermometers. In different boxes
they recovered the items referred to
in the indictment. She said
only the two of them, that is, herself and the appellant, had access
to that bedroom. She also said
that before the police came she was
not aware of the recovered property in the bedroom.
her defence the appellant said she stayed in the house in Johunda
Township as well as in Antelope where she was employed. She
she got Janet to stay with her after thefts occurred at her house
despite the fact that the house would be locked. She regarded
as a sister.
appellant further stated she did not know anything about the property
except the clothing in which the property was alleged
to have been
wrapped. She accepted that such property is found in Government
Departments. She denied removing the property from
Centre. She did not know what happened to those that the witness
Noko said were missing from Beula Clinic. She said
were similar to the ones missing from Beula Clinic but she could not
say they were the same ones.
is clear from the evidence that the appellant was sent on relief
duties to Beula Rural Health Centre from Antelope Hospital.
property similar to that used in hospitals was recovered in her house
in Gwanda, a check was made of stocks at the Beula Rural
Centre where she was working at the time. It was established that
curtains similar to those found at her house were missing
Clinic. She could not give any satisfactory explanation when
confronted by the police. Her allegation of someone stealing
her house without any trace of a break-in suggests that she suspected
her former employee could have been doing that. However,
that was so, I do not think the former employee would steal property
from the appellants place of work and put it in her
house to trap
am satisfied that property which was reasonably suspected to have
been stolen was found in the appellants possession.
appellant suggested that she was not in possession of the property as
she was not there, but having the property wrapped in
belonging to her in a house which belonged to her and was under her
control establishes her possession of the property beyond
the conviction for contravening s 14(1)(b) of the Miscellaneous
Offences Act is to stand.
appeal is dismissed.
JA: I agree.
AJA: I agree.