Court name
Supreme Court of Zimbabwe
Case number
SC 44 of 2004
Crim. Appeal 353 of 2002

S v Gadzikwa and Another (53/02) (SC 44 of 2004, Crim. Appeal 353 of 2002) [2004] ZWSC 44 (07 March 2004);

Law report citations
Media neutral citation
[2004] ZWSC 44
















DISTRIBUTABLE
(39)


Judgment
No. SC 44/04


Crim.
Appeal No. 353/02











(1) SAMUEL
CLEOPAS GADZIKWA (2) PETER ZVINGOBE v


THE
STATE











SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA JA & GWAUNZA JA


HARARE,
MARCH 8, 2004








J
Dondo
, for the
appellants





R
K Tokwe
, for the
respondent









GWAUNZA JA: The two
appellants, who are regular members of the Air Force of Zimbabwe,
appeared before the General Court Martial
facing a charge of stealing
State property contrary to paragraph 18(a) of the First Schedule to
The Defence Act, [
Chapter
11:02
]. They were
found guilty as charged and each sentenced to –






(a) reduction in ranks to AC;







(b) discharge with ignominy from
the Zimbabwe Defence Forces; and







(c) three years’ imprisonment
with labour.





The
appellants were aggrieved at their conviction and sentence and now
appeal against both.






At the hearing of the appeal,
the respondent, through its counsel, Mr
Tokwe,
conceded that there was merit in the appeal against conviction. He
submitted as follows on page 3 of the respondent’s heads
of
argument:





“It
is also respectfully submitted that
the
total sum of the evidence adduced had its own shortcomings and
imperfections which certainly warranted the appellants to be given
the benefit of the doubt and also that there was insufficient
evidence to find them guilty as charged.”






After hearing both counsel, and
being satisfied as to the correctness of the concession made by the
respondent, we quashed the convictions,
set aside the sentences and
directed that a warrant for the liberation of the appellants be
issued.






We now give the full reasons for
that decision.






The allegations against the
appellants were that on dates unknown to the prosecutor but between
September 1999 and May 2001, and
while on assignment for the
construction of chalets in Kariba, the two unlawfully, and with
intent to steal, stole certain building
materials valued at $372 940.
The building materials belonged to the State.






A number of witnesses gave
evidence for the State in the proceedings
a
quo
. The appellants
aver, in the light of the evidence of these witnesses, that the State
failed to prove beyond reasonable doubt that
the appellants were
guilty of the offences with which they were charged. It is
contended, for instance, that the evidence of one
Caesar Kapungu was
only to the effect that he had assisted in the loading of two windows
and one door frame on to the vehicle.
The items, it was averred,
had been found not to be the type required for the job at hand, and
had thereafter been replaced with
the correct items.







The evidence before the Court
shows the appellants are correct in the following other assertions:







(a) that the second witness whom
the State was forced to impeach exonerated the appellants in respect
of the charges they were facing;







(b) that State counsel
persistently put leading questions to the witnesses;







(c) that the evidence of the
State witnesses was largely hearsay evidence, making it evident that
they had no independent knowledge
of the appellants’ alleged theft
of the materials in question (for instance no evidence was led from
one Crag Ncube who was alleged
to have purchased bricks from the
appellants);







(d) that no basis was established
for the conclusion by the respondent that the items in question were
stolen, much less by whom;







(e) that even though the charges
levelled against the appellants were expressed in specific terms it
was not clear, given that no
records were kept of the supplies at the
site, how the quantities cited in the charges had been arrived at;
and lastly







(f) that the trial was conducted
in all respects as if the
onus
lay on the appellants (as the accused persons) to prove their
innocence beyond reasonable doubt when it should have been the State
proving the guilt of the appellants beyond any reasonable doubt.






In support of the last
contention, the appellants have cited, quite correctly in my view,
the following statement of the law enunciated
by GREENBERG J in
R
v Difford
1937 AD 370
at 373:





“No
onus
rests on the accused to convince the court of the truth of any
explanation he gives. If he gives an explanation, even if that
explanation
be improbable, the court is not entitled to convict
unless it is satisfied, not only that the explanation is improbable,
but that
beyond any reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is
entitled
to his acquittal.”









Section 56 of the Defence Act
[
Chapter 11:02]
enjoins a Court Martial “in the trial of any charge” to observe
the same law that is in force in criminal proceedings in the
civil
courts as to –







(a) the onus
of proof;






(b) the
sufficiency or admissibility of evidence;







(c) the competency,
compellability, examination and cross-examination of witnesses; and






(d) any
matter of procedure.






In violation of this
requirement, I find on the evidence before me, that the proceedings
in the court
a quo
were characterised by serious violations of some fundamental rules
governing the conduct of criminal trials. Both counsel are agreed
these included the admission of hearsay evidence, and the asking of
leading questions.





It
is evident there was uncertainty as to the type and exact quantities
of the materials allegedly stolen by the appellants. The
prosecutor
in the court
a
quo confirmed
this fact during his closing submissions. Firstly, in making
reference to Annexure “A”, which listed the various items
supposedly stolen, the prosecutor enumerated types and quantities
thereof that were markedly different from what was tabulated in
the
original list appended to the charge sheet. For instance, while the
original list was specific in terms of measurements, quantities
and
types, the items enumerated by the prosecutor had such notations as
“the number is unknown” and “the width is unknown.”






Secondly the prosecutor noted as
follows on page 154 of the record:





“Indeed
it turned out in the course of the trial that the prosecutor had
understated the number of bags so stolen and overstated on
the number
of the C2H window frames as well as that of the D11H window frames.
Right now it is no longer ascertainable how much
in terms of each
item described at Annex “A” was actually stolen, nor is it
certain any longer whether no other building materials,
especially
the asbestos sheets from the demolished Chalets, were also stolen …









Despite this uncertainty in the
State case, which the court
a
quo
could not have
failed to appreciate,(its attention thereto having been drawn by none
other than State counsel), the appellants were
convicted of theft of
the specific building materials listed in Annexure “A”, which
materials were given the specific value of
$372 940. If, as the
appellants allege, no records of the building materials used for the
project was kept, it becomes unclear how
it was established not only
that specific items had been stolen, but also the quantities and in
respect of some, the measurements
thereof.






The appellants denied they had
stolen any of the materials in question. They gave an explanation
which the Judge Advocate summarised
as follows at page 183 of the
record:





“… the
two accused both took the witness’ stand and gave evidence on their
own behalf after their application for discharge at the
close of the
State case was dismissed by the court. The accused however, admit
in their defence that indeed those materials were
removed from the
construction site. Firstly, they submit that one door frame and two
window frames were returned to Manyame Air
Base after they were found
unsuitable for the building plan. Secondly, they submit that on
various occasions, they took bags of
cement from the construction
site to Zimpat because they would have borrowed it from there after
theirs had run out of supply.
They submit they had developed good
relations with Zimpat. Thirdly, they submit that indeed building
materials in the form of four
rolls of damp proof course and four
rolls of brickforce were removed from the site and given to Mr Makore
the builder who had loaned
these items to them after they had run out
of supplies.”







The Judge Advocate noted that the
said Makore, who was one of the defence witnesses, testified that he
did loan four rolls of brick
force and four rolls of damp proof
course to the first appellant who needed to use such materials then
but that such material had
then been re-imbursed to him.






Assessed against the dictum
in
R v Difford
(supra), which is cited above, the explanations given by the
appellants cannot, in my view, be said to be improbable or beyond any
reasonable doubt, false.




When the uncertainty in the
State case, concerning the specifications and quantities of what was
allegedly stolen, is balanced against
the explanations given by the
appellants, as discussed above, one cannot dispute the merit in the
appellants’ assertion, and the
concession thereto by Mr
Tokwe,
that the State did not prove the guilt of the appellants beyond a
reasonable doubt.





We
were accordingly satisfied that a case had been proved for allowing
the appeal against the conviction of the appellants and the
sentence
passed against them. Hence our order for the quashing of such
conviction, and the issuance of a warrant for their liberation.









SANDURA  JA: I agree.











CHEDA
JA: I agree.






Chinamasa, Mudimu &
Chinogwenya
,
appellants’ legal practitioner


Attorney
General’s Office
,
respondent’s legal practitioner