JAMAINE RUBATIKA

versus

THE STATE

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 31 August 2011 and 19 Septembers 2011

Mr. Nyikadzino, for the applicant

Mrs.Ferro, for the respondent

Bail Application

BHUNU J: The accused was convicted of theft of a motor vehicle from South Africa. He was sentenced to 10 years imprisonment of which 3 years was suspended for a period of 5 years on the usual conditions of good behaviour.

The applicant was convicted on the basis of circumstantial evidence in the absence of direct evidence linking him to the commission of the offence. It was however a fact proved beyond reasonable doubt that the motor vehicle was stolen in South Africa, smuggled into Zimbabwe and fraudulently registered into the accused’s name.

Once the state had proved that the motor vehicle was stolen and fraudulently registered in the applicant’s name, the onus shifted to the accused to give an innocent explanation to the satisfaction of the court on a balance of probabilities.

Despite being given ample time by both the police and the trial court, the applicant was unable to proffer such evidence.  In the absence of an innocent explanation this led the magistrate to draw the irresistible inference to the effect that the accused had the stolen motor vehicle fraudulently registered in his name because he was the thief.

With respect am unable to find any fault with that line of reasoning.

As regards sentence, though it is severe it does not induce a sense of shock to such an extend that it will be drastically interfered with on appeal.  

For the foregoing reasons the appeal cannot succeed. It is accordingly ordered that the appeal be and is hereby dismissed.

Nyikadzino, Koworera & Associates, the applicant’s legal practitioners

The Attorney General’s Office, the respondent’s legal practitioners