Court name
Supreme Court of Zimbabwe
Case number
SC 47 of 2002
Crim. Appeal 212 of 2001

S v Zhuga (212/2001) (SC 47 of 2002, Crim. Appeal 212 of 2001) [2002] ZWSC 47 (27 January 2002);

Law report citations
Media neutral citation
[2002] ZWSC 47


DISTRIBUTABLE (45)


















Judgment No
S.C. 47\2002


Crim.
Appeal No 212\2001

















GODFREY
ZHUGA v THE STATE











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, EBRAHIM JA & SANDURA JA


HARARE
JANUARY 28, 2002








G.M.
Mabuye
,
for the appellant





M.
Nemadire
,
for the respondent








CHIDYAUSIKU
CJ: At the conclusion of submission by counsel we dismissed this
appeal and indicated that the reasons for judgment
would follow.





The
following are the reasons for judgment.





The
appellant appeared before a Mutoko Magistrate, facing a count of
theft of some 20 litres of diesel from his Zimbabwe Republic
Police
workplace. The appellant, after a full trial, was convicted of the
offence charged and sentenced to a fine of $2 000 or,
in default of
payment, 6 months' imprisonment with labour; in addition he was
sentenced to 6 months' imprisonment with labour all
of which was
suspended on certain conditions.





The
appellant appealed to the High Court against conviction. The appeal
was dismissed by the High Court. He now appeals to this
Court
against that judgment.





The
appellant appeals to this Court on the following two grounds set out
in the notice of appeal:-






“1. The Honourable Judges
misdirected themselves by holding that the trial Magistrate did not
err by admitting Appellant’s unconfirmed
statement. The statement
should have only been used and admitted as a previous inconsistent
statement, to discredit accused.






  1. The
    Honourable Judges misdirected themselves, by holding that there was
    overwhelming evidence in support of the conviction after
    disregarding Edmore Phiri’s evidence. The evidence was
    inconclusive and insufficient to support conviction.”










The
above grounds of appeal are essentially the same grounds of appeal
raised by the appellant in his appeal to the High Court against
the
judgment of the learned trial magistrate.







Firstly, I
would like to deal with the first ground of appeal, namely, that the
appellant’s unconfirmed Warned and Cautioned statement
should not
have been admitted in evidence. Even if I were to accept, which I do
not, that there was substance in this ground of
appeal, the record
reveals that there is sufficient other evidence, apart from the
confession, to sustain the appellant’s conviction.
Be that as it
may in my view there is no substance in the submission that the
Warned and Cautioned statement should not have been
admitted.







The manner in
which the statement was admitted as evidence appears on pp 29-30 of
the record. The following exchange between the
appellant and the
prosecutor appears on the record:-







“Q. So you were carrying
paraffin.






  1. Yes
    that is what I said.








  1. You
    gave a Warned and Cautioned statement on this case and the statement
    was recorded from you by Sergeant Musongwe.








  1. Yes,
    I did.








  1. Do
    you still recall what you told the Police in that statement.








  1. Yes
    I do still remember.








  1. I
    want you to have a look at this statement (prosecutor hands accused
    the statement). Is that your statement which you gave to
    the
    Police.








  1. Yes
    it is the very one.







Q. I
want you to read it loudly to the Court.






A. (He starts reading)”I do not
admit to the charge: The diesel I transported with the defender
Truck was mine. I got it from
Panya Chigayo who stays in Murewa.
He sent me 20 litres of diesel which was brought by his friend whom I
cannot remember his name.
The 20 litre of diesel was brought on
17/09/00. Panya Chigayo is employed at Hwamuka Hotel in Murewa.





Q. Can
you tell the court what you meant in that statement.






  1. You
    are a liar.








  1. No.”











Thereafter the
following exchange of questions and answers between the appellant and
the court appears:-







“Self
re-examination - None.



BY THE COURT TO THE ACCUSED.



  1. The
    Statement you read you do confirm it is the one you gave to the
    Police.








  1. Yes
    I confirm.









  1. Do you have
    any objections to its production to the Court?








  1. No,
    the Court can have it.








BY COURT - The Statement is
taken and marked exhibit I.”







It is quite
clear from the above exchange between the prosecutor, the court and
the appellant that the submission by Mr
Mabuye,
for the appellant, that the statement should not have been admitted
is ridiculous. The appellant is a police officer who consented
to
the admission of his extra-curial statement. If any undue influence
had been brought to bear upon him to make the statement
he would have
said so. In any event the statement is exculpatory. Why would
anybody force someone to make an exculpatory statement.
I am
therefore satisfied that there is no substance in this ground of
appeal.







Turning to the
second ground of appeal that there was insufficient evidence to
convict the appellant of theft. In this regard the
following two
issues fall for determination:







  1. did the State establish
    the theft of the 20 litres of diesel; and








  1. if
    so, was the appellant identified as the thief.






An
audit of the diesel was carried out on 18 September 2000. It was
established through this audit that there was a shortfall of
40
litres of diesel. Assistant Inspector Phiri’s evidence was that
he ordered the audit that revealed the shortfall. When the
shortfall was discovered he ordered an investigation. The fact of
the shortfall was never an issue at the trial. It was never
suggested in cross-examination that in fact no diesel was missing or
stolen. The appellant’s cross-examination centred on his
contention that his 20 litre container had paraffin and not diesel.
On this basis I am satisfied that the State established beyond
reasonable doubt that there was a shortfall in the diesel which was
caused by theft of the diesel.





The next issue that falls
for determination is whether the appellant stole all or some of this
diesel. The starting point to this
enquiry is that it is common
cause that the appellant had a 20 litre container that was full of
some substance. Was that substance
diesel or paraffin? The
appellant, in his defence outline and in his evidence in court
maintained that the container in his possession
on 19 September 2000
contained paraffin and not diesel. At p 23 of the record he asked
Inspector Phiri the following question which
attracted the following
answer:-





“Q. I
put it to you my 20 litre contained paraffin and not diesel.






  1. I
    cannot comment on that as I did not see you carrying the container
    but when I first confronted you, you told me you’d been carrying
    diesel sent to you from Murewa.”









The
evidence of Inspector Phiri was that when he asked the appellant
about the theft of the diesel the appellant admitted that the
20
litre container he had on 19 September 2000 contained diesel which
he, the appellant, had received from one Chigayo from Murewa.
The
appellant maintained this stance in the Warned and Cautioned
statement, exhibit 1, which was recorded on 29 September 2000.
Mr
Mlambo, who the trial court found to be a credible witness, stated
that he actually saw the appellant leave his residence with
an empty
20 litre container and proceeded to the diesel shed where he filled
it with diesel. The appellant thereafter took the
diesel to his
house.





Another
Police officer, Tafira, also met the appellant carrying a yellow 20
litre container full of diesel. It was the appellant
who told this
witness, according to the witness’s evidence, that the container
had diesel which the appellant intended to sell.
The court found
this witness to be a credible witness. There is nothing on the
record to suggest that this finding is flawed.





There
is also the evidence of Panya that the appellant had telephoned him
requesting that he should tell the police that he, Panya,
had
supplied the appellant with diesel. Panya declined the appellant’s
request and indeed told the police the truth, namely,
that he never
supplied diesel to the appellant. It is quite clear from Panya’s
evidence that the appellant had banked on co-operation
from Panya and
in anticipation of that co-operation stated in the Warned and
Cautioned statement that he had received the diesel
seen in his
possession from Panya Chigayo. When Panya Chigayo refused to
co-operate the appellant decided to change his defence.





The
evidence that the appellant had diesel and not paraffin in the 20
litre container in his possession on 19 September 2000 is simply
overwhelming. The appellant has not offered an innocent explanation
or source of the diesel. Consequently the conviction for
theft of
the diesel is well founded on the evidence.





The
appeal is completely devoid of merit and it was for the above reasons
that we dismissed the appeal.














EBRAHIM
JA: I agree











SANDURA
JA: I agree

















Mabuye and Company,
appellant's legal practitioners