Court name
Supreme Court of Zimbabwe
Case number
SC 110 of 2002
Crim. Appeal 237 of 2001

S v Kasema (SC 110 of 2002, Crim. Appeal 237 of 2001) [2003] ZWSC 110 (15 January 2003);

Law report citations
Media neutral citation
[2003] ZWSC 110



















Judgment
No S.C.110\2002


Crim.
Appeal No 237\2001

















SHEPHERD
KASEMA v THE STATE











SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA JA & ZIYAMBI JA


HARARE
NOVEMBER 18 , 2002 & JANUARY 16, 2003








G.T.
Chapwanya
,
for the appellant





R.K.
Tokwe
,
for the respondent








SANDURA JA:
The appellant and two other men were charged with contravening
paragraph 18(a) of the First Schedule to the Defence
Act [Chapter
11:02], the allegation being that on 25 February 2001 and at
Muzarabani they stole a 200 litre drum of Jet A1 fuel which
belonged
to the State. All of them were Sergeants in the Airforce of
Zimbabwe (“AFZ”).





On
9 July 2001 they appeared before a General Court Martial at Manyame
Air Base and pleaded not guilty. However, they were subsequently
found guilty as charged after a trial had been conducted. The
appellant was sentenced to nine months' imprisonment with labour.

In addition, his rank was reduced to that of an aircraftsman, and he
was dismissed from the Zimbabwe Defence Forces with ignominy.

Aggrieved by the conviction and sentence, he appealed to this Court.





The
background facts are as follows. At the relevant time the appellant
and the two other men, i.e. Sergeant Mandivenga (“Mandivenga”)
and Sergeant Tapfumaneyi (“Tapfumaneyi”) were members of the AFZ
stationed at the Manyame Air Base.





On
24 February 2001 the appellant and Mandivenga were tasked with
supplying Jet A1 fuel to the AFZ which was involved in the flood
victims rescue operation at Muzarabani. The appellant was the
supplier of the fuel and Mandivenga was the driver of the lorry which
took the fuel to Muzarabani. They took twenty drums of Jet A1 fuel
and one drum of diesel. Each drum contained two hundred litres
of
fuel. The diesel was for use by the lorry but the Jet A1 fuel was
for use by aircraft at Muzarabani.





On the
following day the appellant and his colleague arrived at Muzarabani
Police Station (“the police station”). Seven drums
of Jet A1
fuel were left at the police station and the remaining thirteen were
taken to a nearby airfield. After leaving the thirteen
drums at the
airfield the appellant and Mandivenga returned to the police station.





Later
that day, they loaded twenty empty drums onto the lorry intending to
return them to Manyame Air Base. Some of these drums
were collected
from the airfield whilst others were collected from the police
station.





In
addition to the empty drums, a drum containing Jet A1 fuel which was
leaking, and which was not part of the drums delivered to
Muzarabani
on that day, was put on the lorry at the police station and was
supposed to be returned to Manyame Air Base. This is
the drum which
was the subject of the theft charge. It was not returned to Manyame
Air Base, but was later found in the joint possession
of Agnes
Chaparira (“Chaparira”) and Christopher Mugari (“Mugari”),
residents of Muzarabani, who claimed to have bought it
from members
of the AFZ for $3 000.00.





Investigations
by the police led to the arrest of the appellant, Mandivenga and
Tapfumaneyi.





At
the trial, the appellant’s defence was a bare denial. He denied
seeing the drum at the police station, and denied that it
had been
put on the lorry. He also denied being paid the sum of $3 000 by
Mugari.





However,
in my view, there was overwhelming evidence against the appellant.
That evidence established beyond reasonable doubt
that it was the
appellant who released the drum to Mugari and, therefore, unlawfully
appropriated the State’s property.





Firstly,
there was the evidence of Sergeant Mapingure (“Mapingure”), the
investigating officer, which was as follows. At the
relevant time,
he was the officer-in-charge of administration at the police station.
On 25 February 2001 the appellant and Mandivenga
delivered some
drums of Jet A1 fuel to the police station. After the drums had
been removed from the lorry, he informed the appellant
that there was
a drum with Jet A1 fuel which was leaking and which had been left by
the AFZ pilot because the fuel was no longer
fit for use by aircraft.
The reason for informing the appellant about the leaking drum was
that it had to be returned to Manyame
Air Base. In addition, he
informed the appellant that there were some empty drums at the police
station which had to be returned
to the same Air Base. He then
handed over to the appellant the leaking drum as well as the empty
ones, and all the drums were then
loaded onto the lorry.





It
was Mapingure’s evidence that when he subsequently questioned
Tapfumaneyi, the latter told him that the release of the drum
to
Mugari had been authorised by the appellant. He later questioned
the appellant who told him that the drum had been released
to Mugari
with the pilot’s consent. However, this was later denied by the
pilot.





Secondly,
there was the evidence of Tapfumaneyi which was as follows. On 23
February 2001, he and other AFZ members left Manyame
Air Base for
Muzarabani where they were to take part in the flood victims rescue
operation.





Two
days later, on 25 February 2001, he was at the police station when he
met Mugari, his brother-in-law. Thereafter, he heard
policemen
talking about a drum with Jet A1 fuel which was leaking.
Subsequently, after seeing the drum, he approached the appellant,
who
was in the company of AFZ members, and asked him if the drum could be
given to Mugari, as the fuel was no longer fit for use
by aircraft
but could be used for domestic purposes as paraffin. In reply, the
appellant said Mugari could have the drum.





Thereafter,
Tapfumaneyi asked Mandivenga to take the drum to Mugari’s house,
using the lorry. Before he could do that, Mandivenga
sought the
appellant’s permission which was readily granted. Accordingly,
Mandivenga, accompanied by Tapfumaneyi, took the drum
to Mugari’s
house. However, as Mugari did not have a container into which the
fuel could be emptied, the drum was taken to Chaparira
who had such a
container.





Thirdly,
there was the evidence of Mandivenga which was as follows. He was
the driver of the lorry which took the drums of Jet
A1 fuel to
Muzarabani Police Station on 25 February 2001 and was accompanied by
the appellant. At the police station he and the
appellant were
informed that there was a drum of Jet A1 fuel, delivered to the
station earlier, which was leaking and which had to
be returned to
Manyame Air Base. The appellant informed the policemen at the
station that he would take the leaking drum and the
empty drums back
to Manyame Air Base. Accordingly, the leaking drum and all the
empty drums at the station were loaded onto the
lorry in the presence
of the appellant, AFZ members and local policemen.





It
was Mandivenga’s evidence that the appellant, after being
approached by Tapfumaneyi, subsequently authorised the release and
delivery of the leaking drum to Mugari. He added that the drum was
in fact taken by him to Mugari’s house and then to Chaparira’s
residence.





Fourthly,
there was the evidence of Sergeant Moyo (“Moyo”), an aircraft
technician, which was as follows. Everyone at the
police station
knew that there was a drum of Jet A1 fuel which was leaking, and when
the appellant and Mandivenga arrived at the
police station on 25
February 2001 they were informed by him and by Mapingure that the
drum was to be returned to Manyame Air Base.
He added that the
appellant was not telling the truth when he said he did not know that
there was a leaking drum at the station.





Fifthly,
there was the evidence given by Squadron Leader Chabata (“Chabata”),
a pilot, which was as follows. He knew that
there was a leaking
drum of Jet A1 fuel at the police station, and when the appellant
arrived at the station on 25 February 2001
he informed him about it.
He denied having authorised the appellant to give the drum to
Tapfumaneyi or Tapfumaneyi’s brother-in-law,
Mugari. This witness
was not cross-examined by counsel for the appellant. His evidence
was, therefore, not challenged.





Sixthly,
there was Mugari’s evidence which was as follows. On 25 February
2001 he met Tapfumaneyi at Muzarabani Shopping Centre.
Tapfumaneyi
was with Moyo and both men were drinking some beer. Shortly
thereafter, the appellant and Mandivenga arrived. Tapfumaneyi
then
asked the appellant if he (i.e. the appellant) could let Mugari take
the leaking drum as the fuel was no longer fit for use
by aircraft,
but could be used for domestic purposes. The appellant’s reply
was in the affirmative. The appellant then took
Mugari to a spot
about three metres away and informed him that he required payment of
the sum of $3 000 before he could release the
drum to him. Mugari
agreed to pay.





However,
as Mugari only had $1 500 he contacted Chaparira who contributed the
sum of $1 500 towards the purchase of the drum on
the understanding
that she would be entitled to half of the fuel. Shortly thereafter,
Mugari paid the sum of $3 000 to the appellant
at the police station,
and the drum was later delivered to Chaparira’s residence.





During
cross-examination it was put to Mugari that he was not telling the
truth because in a statement which he had made to the
police earlier
he had stated that the drum had been sold to him by Moyo and
Mandivenga and that he had paid the sum of $3 000 to
Mandivenga. In
reply Mugari denied that he was lying. He added that he had
mentioned Moyo and Mandivenga in error because when
the
identification parade was held the appellant was not on it but Moyo
and Mandivenga were. He maintained that the truth was that
the
money was paid to the appellant and the drum was delivered by
Mandivenga.





Finally,
there was Chaparira’s evidence which was as follows. On the day
in question Mugari came to her residence and informed
her that there
was fuel which was not fit for use by aircraft and which was being
sold by AFZ employees for $3 000. He asked her
to pay half of the
purchase price on the understanding that they would share the fuel
equally. She agreed and paid the sum of $1
500. The drum of fuel
was later delivered to her residence.





It
is clear from the above evidence that the appellant lied when he said
that he knew nothing about the leaking drum. On the contrary,
the
evidence established beyond reasonable doubt that he was informed
about the drum and that, having put it on the lorry, he undertook
to
return it to Manyame Air Base, which he did not do. Instead, he
unlawfully appropriated it with the intention of permanently
depriving the State of its property. The drum could not have been
released and delivered to Mugari without the appellant’s
authorisation
because it was the appellant who had full control over
it, and not Moyo or Mandivenga.





Whilst
it is true that in his evidence Mugari contradicted his earlier
statement, I do not think that the contradiction has great
significance because it does not detract from the rest of the
evidence which established beyond reasonable doubt that the
appellant,
who had complete control over the drum, unlawfully
appropriated it with the intention of depriving the State of its
property. In
the circumstances, the appellant was properly
convicted.





I
now deal briefly with the appeal against sentence. It was submitted
on behalf of the appellant that the sentence imposed upon
him was
manifestly excessive. I respectfully disagree with that submission.





It
has been stated by this Court in a number of previous cases that
theft of property belonging to the State by people employed
by the
State is viewed seriously and that in such cases deterrent sentences
are called for. In the present case, the appellant
was the person
in complete control of the property in question and occupied a
position of trust. His conduct constituted a serious
breach of that
trust and deserved appropriate punishment.





Whilst
I agree that the sentence imposed upon the appellant is a severe one,
I do not think that it is so severe that it induces
a sense of shock.
There is, therefore, no basis for interfering with the sentence.





In
the circumstances, the appeal against conviction and sentence is
devoid of merit and is, therefore, dismissed.














CHEDA
JA: I agree














ZIYAMBI
JA: I agree















Tizirai-Chapwanya
& Mabukwa
,
appellant's legal practitioners