Court name
Bulawayo High Court
Case number
CRB 255 of 2000
256 of 2000
Case name
S v Nduna and Anor
Law report citations
Media neutral citation
[2003] ZWBHC 48

                                                                                    Judgment No. HB 48/2003

                                                                                    Case No. HCA 34-5/2001

                                                                                    CRB 255-6/2000

 

COSMAS NDUNA

 

And

 

TRYAGAIN MAPOPE

 

Versus

 

THE STATE

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA & NDOU JJ

BULAWAYO 3 APRIL 2003

 

R Moyo-Majwabufor the applicants

Mrs M. Moya-Matshangafor the respondent

 

Criminal Appeal

 

            CHEDA J:     Appellants were convicted by the Regional Magistrate on 14

 

February 2001 and were sentenced to 6 years imprisonment of which 2 years

 

imprisonment was suspended on the usual conditions.  It is that finding that they now

 

appeal against.

 

            Appellants were members of the Zimbabwe Republic Police attached to the

 

Support Unit Branch, based at Fairbridge, Bulawayo.  During the months of

 

December 1998 they were deployed along the Zimbabwe/Botswana border in order to

 

crack down on the rampant robberies, rapes and border jumping.  One of them was

 

armed with a CZ pistol.  Whilst on patrol they came across the complainant whom

 

they robbed of six hundred dollars (Z$600), two hundred and fifty pula (P250) and a

 

few items which he had bought from Botswana.  They both pleaded not guilty.

 

            The thrust of their appeal is that there were discrepancies in the state’s case

 

which discrepancies should not have been ignored by the trial court and also by

 

 

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making a finding that the single evidence rule was enacted in section 270 of the

 

Criminal Procedure and Evidence Act [Chapter 9:07] yet it is in fact in section 269 which reads;

 

“Sufficiency of one witness in criminal cases, except perjury and treason

 

            It shall be lawful for the court by which any person prosecuted for any offence is tried to convict such person of any offence alleged against him in the indictment, summons or charge under trial on the single evidence of any competent and credible witness:

            Provided that it shall not be competent for any court –

  1. to convict any person of perjury on the evidence of any one witness as to the falsity of any statement made by the accused unless, in addition to and independently of the testimony of such witness, some other competent and credible evidence as to the falsity of such statement is given to such court;
  2. to convict any person of treason, except upon the evidence of two witnesses where one overt act is charged in the indictment or, where two or more such overt acts are so charged, upon the evidence of one witness to each such overt act;
  3. to convict any person on the single evidence of any witness of an offence in respect of which provision to the contrary is made by any enactment.”

 

This section if my understanding is correct gives the court power to convict

 

on the single evidence of any competent and credible witness.  The issue therefore, is

 

are the discrepancies in such witness’ testimony fatal.  This is what should be

 

addressed first.  It is quite common to find discrepancies in evidence but such

 

discrepancies are not necessarily an indication of falsehood on the part of the

 

deponent.  I fully associate myself with the approach in R v Juwaki and anor 1665 (1)

 

SA 792, in which QUENETJP at 606C-D stated;

 

“Where there are imperfections in the evidence of an accomplice and there is no corroboration of his evidence implicating the accused, the question remains whether there are other features which reduce the danger of false incrimination and, if there are, whether they reduce it to the point where there is no reasonable possibility that the accused has been falsely implicated.  Indeed, that was the manner in which CLAYDEN CJ approached the question of the correctness of the second appellant’s conviction in Lembikani’s case (1964 R & N 7).  And may I say that, in considering whether the danger of false incrimination has been satisfactorily removed, the need that the other features

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should be strong and significant must, in each case, be related to the quality and character of the accomplice’s evidence and the degree of its imperfection.”

 

            This principle was referred to with approval in S v Lawrence 1989 (1) ZLR 29

 

(SC).

 

            Discrepancies in a case must be of such magnitude and value that it goes to the

 

root of the matter to such an extent that their presence would no doubt give a different

 

complexion of the matter altogether.  In my view discrepancies whose presence do not

 

usher in that change should be regarded as immaterial and as such of no value in the

 

determination of the truth or otherwise of the matter at hand.  In S v Makandigona

 

1981 ZLR 408 where the witness had made a previous inconsistent statement, BARON

 

JA at 411D-E stating the proper approach to evidence where there were

 

inconsistencies said:–

 

“Even without a previous inconsistent statement, and ignoring also that she was an obvious accomplice with an obvious interest to support the appellant, the proper approach of the court was to consider the evidence of all the witnesses, whether called by the prosecution or the defence, and to decide where the truth lay.”

 

            In the present case the evidence adduced before the court clearly points to the

 

fact that appellants were involved in the robbery of the complainant.  In the present

 

case the inconsistencies referred to by appellants’ legal practitioner are far much

 

outweighed by the corroborative evidence by the appellants themselves for example

 

the indications and the description of their clothes on the day of the commission of the

 

offence.

 

The next question then is to decide whether or not the reference to a wrong

 

section per se by error should result in the acquittal of the appellants.

 

            I agree with appellants that the trial magistrate referred to the provisions of

 

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section 270 which deal with evidence of an accomplice.  However, in my view, the

 

matter can not just end there.  Section 270 of the code refers to single evidence of an

 

accomplice.   While the magistrate referred to this section he, however, proceeded to

 

deal with this case with the application of the provisions and requirements of section

 

269 which deals with the sufficiency of evidence of a single competent and credible

 

witness.  This is confirmed by his reference to the case of Zimbawora v The State SC-

 

7-92 where EBRAHIMJA at page 2 of the cyclostyled judgment stated;

 

“The court a quo was entitled to convict the appellant on the single evidence of the complainant but it was necessary for such evidence to be clear and satisfactory in every material respect.  See R v Mokoena 1932 OPD 79 at 80; R v Ellis 1961 R & N 468; S vBwindura SC-125-82; S v Murenda SC-86-84; S v Jabangwa SC-25-89; S v Corbett SC-33-90; S v Shoko SC-88-90; S v Mpofu SC-161-90 and S v Gwanzura SC-44-91.”

 

            Reference to the principle stated above is, in my view, an indication that the

 

learned trial magistrate was live to the caution necessary in dealing with evidence

 

from a single competent and credible witness.  I could not see in the papers before me

 

any indication that the complainant was an accomplice.  It is clear that he was treated

 

as a complainant throughout the trial.  The fact that he is a confessed border jumper

 

which is a crime in its own way does not per se qualify him to be an accomplice.  His

 

evidence in relation to the present matter has nothing to do with his unlawful conduct

 

as a border jumper, if anything it adds credence to his credibility in that he made a

 

clean breast of his travel status.

 

            I hold the view that mere reference or wrong citation of a section on its own

 

without corroborative evidence that in addition to the wrong citation, the judicial

 

officer proceeded and continued to treat the matter under the wrong section is not

 

enough reason to treat such an error as being fatal to his decision.  It would be entirely

 

different if, in addition to the wrong citation he continued to labour under the same

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mistake, for that would clearly result in the wrong conclusion.

 

            Section 269 entitled the court to convict a person on the single evidence of any

 

competent and credible witness except where the person is charged with perjury,

 

treason or of an offence of which in respect of which provision to the contrary is made

 

by an enactment.  I therefore do not agree with appellants’ legal practitioner’s

 

argument on his understanding of the learned trial magistrate’s reasoning.

 

            As pointed out in Zimbawora’s case the evidence of a single witness has to be

 

clear and satisfactory.  The complainant gave his evidence very well and was

 

consistent throughout.  He had no reason to lie about the appellants and he indicated

 

the spots where he was taken to by the  appellants and they did not deny having been

 

with him on 24 December 1998.   The court a quo understood this evidence in its

 

clearest form and was duly satisfied with it, I also agree with him that the

 

evidence presented was not only clear but satisfactory in all material respects.

 

            Appellants have queried the sentence imposed as that which induces shock

 

because of its harshness.  The appellants were members of the police force who were

 

officially armed and were deployed to deal specifically with robbers along the

 

Zimbabwe/Botswana border.  Instead of protecting members of the public and

 

eliminating crime they, to the contrary of their duties went out to commit the very

 

crime they were supposed to prevent.  What more cheek would a police                 

 

officer have than this type of behaviour.  They saw the complainant who was a border

 

jumper whom they should have arrested, but instead chose to rob him of his property. 

 

They are indeed first offenders but I believe that this is one of the cases where the

 

courts should send a clear message to those in authority that such brazen abuse of

 

power will not be tolerated by these courts.  Appellants can therefore not escape being

 

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used as guinea pigs in this matter.

 

            I therefore find that the conviction and sentence is proper and this appeal must

 

accordingly fail.

 

 

 

 

 

 

 

                                                Ndou J …………………….. I agree

 

 

Messrs James, Moyo-Majwabu & Nyoniappellants’ legal practitioners

Criminal Division of the Attorney-General’s Officerespondent’s legal practitioners