No. SC 73/04
Appeal No. 44A/03
COMMANDER JUDGE MASASI v THE STATE
COURT OF ZIMBABWE
MALABA JA & GWAUNZA JA
JULY 6 & SEPTEMBER 10, 2004
Dondo, for the
Shamuyashe, for the
SANDURA JA: The
appellant was charged with contravening para 18(a) of the First
Schedule to the Defence Act [Chapter 11:02]
(the Act), the allegation being that during the period
extending from July 2000 to September 2000, he stole 6 000 red
standard bricks, two cubic metres of quarry stones and one roll of
brickforce wire, all belonging to the respondent. He was a regular
commissioned officer of the Air Force of Zimbabwe (the AFZ).
10 December 2002 he appeared before a General Court Martial at
the Field Air Force Base and pleaded not guilty. However,
subsequently found guilty as charged after a trial had been
conducted. He was sentenced to two years imprisonment with
labour. His rank was reduced to that of an aircraftsman and he was
cashiered from the Zimbabwe Defence Forces. In addition, it
ordered that the sum of $118 284.00, being the estimated value
of the stolen property, be recovered from his terminal benefits.
Aggrieved by that result, he appealed to this Court against
conviction and sentence.
At the hearing of this appeal,
who appeared for the respondent, conceded that the appellant should
not have been found guilty of stealing one roll of brickforce
because that theft was not established by the evidence. In
addition, he conceded that in view of the fact that the value of
stolen property could not be ascertained with any degree of
certainty, the order that the sum of $118 284.00 be recovered
from the appellants terminal benefits should not have been made.
In my view, both concessions were properly made.
now wish to consider whether the appellant was properly convicted of
stealing 6 000 bricks and two cubic metres of quarry
The State relied upon the evidence of six witnesses.
first witness was Sergeant Petros Ellington (Ellington),
the investigating officer in this case. His evidence was
follows. At the relevant time he was a member of the Zimbabwe
Military Police (the ZMP) and had been a member of the ZMP
about twelve years.
April 1998 the Ministry of Local Government and National Housing,
after completing the construction of the first phase of the
flats (the flats) at Manyame Air Base (the base), handed
over the remaining building materials to the AFZ which
was to proceed
with the next phase of the construction. The building materials
included about 30 000 red standard common bricks,
about 20 000
red rustic face bricks, and some quarry stones whose quantity
Ellington could not estimate.
the course of investigating the allegations against the appellant,
Ellington recorded statements from various witnesses. In
cross-examination, he admitted that at the relevant time the bricks
at the base were stolen by various officers, and that when the
investigation started in September 2001 there were no bricks left,
although a heap of quarry stones was still at the base at that
In addition, he admitted that a number of officers had been
prosecuted for stealing some of the building materials, and that
were still to be prosecuted for theft.
Ellington was asked how he had calculated the total number of bricks
stolen by the appellant, he said that he had added up
given to him by the members of the Airforce (the soldiers) from
whom he had recorded statements and who had loaded
the bricks onto
the truck, acting on the appellants instructions.
second witness was Sergeant Constantine Muzanenhamo (Muzanenhamo),
whose evidence was as follows. He had been a member
of the AFZ for
sixteen years and in the year 2000 was attached to the 201 Squadron.
On the day in question,
Muzanenhamo went to work as usual at the 201 Squadron. An SF911
truck arrived, being driven by Sergeant Sithole
The appellant and Master Sergeant Mafuwa (Mafuwa) were there.
Mafuwa then instructed him (i.e. Muzanenhamo)
and two other
soldiers to get onto the truck, stating that there was a job to be
done. The four soldiers, including Mafuwa, then
boarded the truck
and were driven to the area of the flats.
At the flats, Mafuwa instructed
Muzanenhamo and the other soldiers to load some bricks onto the
truck, and they did, being assisted
by Mafuwa. When there were two
or three layers of bricks on the truck, the truck was driven by
Sithole to a residential stand in
the suburb of Warren Park North in
Harare, with Muzanenhamo, Mafuwa and the other two soldiers on the
truck. At that stage Muzanenhamo
did not know that the owner of the
stand was the appellant.
The bricks were offloaded at
the stand, and Muzanenhamo observed that there was a house under
construction, and some bricks which
had previously been delivered to
the stand. However, he could not say whether the bricks he found on
the stand were similar to
the ones they had delivered. Although he
could not say whether the bricks they had delivered to the stand were
common bricks or
face bricks, after being shown samples of the two
types of bricks he said they had delivered a mixture of the two
types. He only
became aware that the stand to which the bricks had
been delivered belonged to the appellant after the investigating
him about that during the course of the
third witness was Mafuwa, and his evidence was as follows. At the
relevant time he was a Flight Commander attached to 201
the appellant was senior to him. He came to know about the
appellants stand in Warren Park North because, acting
appellants instructions, he used to purchase building materials
for him and deliver them to the stand.
One day in the year 2000 Mafuwa
went to work as usual at the 201 Squadron. Thereafter, the
appellant arrived and spoke to Flight
Lieutenant Ngadya (Ngadya)
who was his (i.e. Mafuwas) Commanding Officer. Ngadya then
instructed Mafuwa to get some soldiers
from the Squadron, board the
SF911 truck with them, proceed to the area of the flats, load some
bricks onto the truck and deliver
them to a stand in Warren Park
North. He complied with that instruction and Muzanenhamo was one of
the soldiers who assisted in
loading the bricks onto the truck and
delivering them to the stand in Warren Park North. Sergeant Stanley
assisted in the loading of the bricks.
Mafuwa said he did not know how
many bricks had been delivered to the stand in question on that
occasion, but said that there were
two layers of bricks on the truck.
He only became aware that the stand belonged to the appellant when,
on a subsequent occasion,
he and the appellant delivered bags of
cement to the stand.
was put to this witness in cross-examination that he had contradicted
what he had said in his statement to the police. In that
he was recorded as having said that he was approached by the
appellant and was instructed to get some soldiers from the
board the SF911 truck with them and deliver the bricks, which were
already on the truck, to the stand in Warren Park North.
reply, Mafuwa maintained that he had not been instructed directly by
the appellant, but had been instructed by Ngadya after the
had spoken to Ngadya. He added, however, that the paragraph in his
statement to the police, referred to by counsel in
related to an occasion different from the one in respect of which he
had given evidence. He stated that on that
occasion, he had in fact
boarded a truck which was carrying some bricks and which later
delivered them to the stand in Warren Park
he stated that when he signed the statement he had not read it
because he had not had the time to do so. The statement
brought to him when he was attending a management training course.
He had come out of the classroom, assumed that the
correct and signed it.
The fourth witness called by
the prosecution was Maregedze. His evidence was as follows. In
the year 2000 he was attached to
the 203 Squadron. On the day in
question, the appellant arrived at the 203 Squadron, driving a motor
vehicle with the registration
number 192 MP 95, and told Sergeant
Masunga that he required five soldiers to do a certain job.
Maregedze and four others were
selected. They boarded the
appellants vehicle and were driven to the flats, where they found
Sithole, Mafuwa and other soldiers
from the 201 Squadron apparently
waiting for them. The SF911 truck was parked nearby. The
appellant then instructed the two groups
of soldiers to load 1 500
bricks onto the truck. When that had been done, the appellant drove
his motor vehicle and led the
way to the stand in Warren Park North.
He was followed by the truck being driven by Sithole. The bricks
were offloaded at the
stand and Mafuwa and Sithole informed Maregedze
that the stand belonged to the appellant.
was Maregedzes evidence that he and other soldiers had taken part
in loading bricks onto the truck and delivering them from
the base to
the stand in Warren Park North on three occasions.
In cross-examination it was put
to Maregedze that he had contradicted the statement he made to the
police in which he stated that
on the first occasion 3 000
bricks were loaded onto the truck and delivered to the stand in
Warren Park North. In reply, he
stated that he had made the
statement about two years before giving evidence in court and had not
had the opportunity to refresh
his memory by reading it. He added
that what he had said in the statement must be correct because when
he made the statement the
events were still fresh in his mind. In
the circumstances, he said that the correct position was that 3 000
bricks were loaded
on the first occasion and 1 500 on the second
occasion. He could not, however, recall how many bricks were loaded
on the third
occasion, but he was certain that some bricks were
delivered from the base to the stand in Warren Park North on three
fifth witness called by the prosecution was Lance-Corporal Zishiri
(Zishiri). His evidence was as follows. He was
the 201 Squadron shortly after completing the training course
designed for recruits.
September 2000 he reported for duty at the 201 Squadron.
Thereafter, the appellant, who was driving a Mazda B 1600
truck, arrived and spoke to Corporal Mvundura
(Mvundura). A short while later Mvundura instructed Zishiri
some shovels from the storeroom at the Squadron and board
the appellants truck.
collecting the shovels, Zishiri and other soldiers attached to the
201 Squadron boarded the appellants truck and were driven
flats where they were instructed to load, and did load, some quarry
stones onto the appellants truck. The truck was then
the appellant towards the guardroom, with Zishiri and his colleagues
However, before the truck
reached the guardroom, it was stopped. Zishiri and his colleagues
disembarked from it and Flight Lieutenant
Dumisani Tholo (Tholo)
boarded it. It was then driven by the appellant towards the
guardroom, but Zishiri did not know whether
or not it was driven out
of the base. Zishiri added that he did not know the quantity of the
quarry stones loaded onto the truck
on that occasion.
the prosecution called Tholo as a witness. His evidence was as
follows. At the relevant time he was the base police
had known the appellant since 1988.
at least two occasions he saw the appellant commanding troops which
were loading some bricks onto an SF911 truck. That was
in the year
2000. He asked the appellant where the bricks were being taken and
in reply the appellant said that the bricks were
going to be used in
the renovation of the AFZ range at Chikurubi.
when Tholo subsequently carried out some investigations he discovered
that there had not been any renovations at the range
He reported the matter to various senior officers but nothing was
it was put to him in cross-examination that he had incriminated the
appellant because he himself had been found guilty of theft
discharged from the Defence Forces, he denied the allegation and
stated that he had committed his offence long after the appellant
sums up the evidence led by the prosecution.
appellant gave evidence and denied the charge. He alleged that all
the prosecution witnesses had lied against him in order
to cover up
their own criminal offences. In other words, he alleged that the
witnesses had conveniently made him a scapegoat.
However, in my view, the
evidence given by the prosecution witnesses established beyond
reasonable doubt that the appellant stole
at least 4 500 bricks.
The evidence established that on several occasions the appellant,
directly or indirectly, instructed
some soldiers to load some bricks
onto the SF911 truck, and that the truck was then driven by Sithole
to the appellants stand
in Warren Park North where the bricks were
offloaded. The bricks, which belonged to the State, had been
unlawfully removed from
the base on the appellants instructions.
already indicated, the evidence given by Tholo, the base police
officer, was that when he asked the appellant why he was removing
bricks from the base the appellants reply was that the bricks were
required for the renovation of the AFZ range at Chikurubi.
Tholo subsequently checked the range in question, he discovered that
no renovation had taken place and that the bricks
which had been
removed from the base by the appellant were not at the range. That
evidence was very significant and destroyed the
With regard to the allegation
of theft of two cubic metres of quarry stones, although there was
evidence that on one occasion the
appellant instructed some soldiers
to load some quarry stones onto a Mazda B 1600 pick-up truck
which was later driven by the
appellant towards the guardroom, there
was no evidence on the quantity of the quarry stones loaded onto the
truck. Zishiri said
that he had not informed the investigating
officer about the quantity of the quarry stones loaded onto the truck
because he did not
know the quantity. He did not even say that the
truck was loaded to full capacity.
was, therefore, no valid basis for the finding that the appellant had
stolen two cubic metres of quarry stones.
I do not think that the alteration of the nature and quantity of the
property stolen in this case calls for a reduction
in the sentence
which was imposed on the appellant. In a number of cases, this
Court has stated that theft of property belonging
to the State by
persons employed by the State is viewed very seriously, and that in
such cases deterrent sentences are called for.
That applies to the
the circumstances, subject to the alteration of the nature and
quantity of the property stolen and the deletion of the order
the sum of $118 284.00 be recovered from the appellants
terminal benefits, the appeal against conviction and sentence
JA: I agree.
JA: I agree.
Chinamasa, Mudimu &
appellant's legal practitioners
respondent's legal practitioners