Audriane Ndebele v The State

### Preamble
1
HB 214/19
HCA 128/17
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AUDRIANE NDEBELE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA & MABHIKWA JJ

BULAWAYO 18 FEBRUARY 2019 & 9 JANUARY 2020

Criminal appeal

M. Mpofu for the appellant

N. Ndlovu for the respondent

MABHIKWA J:	The accused appeared before a magistrate sitting at Bulawayo’s Tredgold Court facing up to 49 counts of the former common law crime of theft by conversion, now known as theft of trust property as defined in section 113 (2) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It was the state case that the appellant was employed by the various complainants as a messenger.  His duties included among others, going to make bank deposits at ZIMRA and some utility bill payments at Bulawayo City Council on behalf of the complainants.  It was further alleged that in that capacity as messenger, the appellant received the various amounts of money from the complainants meant for banking, ZIMRA payments and a number of other payments.  The appellant did not pay as entrusted to him but allegedly converted the monies to his own use instead.  It was alleged also that to cover up for his offences, the appellant would then present fake receipts to the complainants as proof of payments to the service providers or clients.

In his defence, the appellant averred that whenever he was sent to make any payments, he would do as instructed and as required per the amounts given to him.  He averred further that all the receipts that he produced are the receipts that he got when he made the said payments to the relevant service providers.  It was his contention that from the circumstances, either there was a faulty system or there was connivance for instance among bank tellers and ZIMRA employees.He further queried how the complainants would have gotten their tax clearance if he had not made the payments over the years as alleged.  He also averred that it was not on all occasions that he went to make the payments but that on other occasions he would ask a fellow messenger to do the errands on his behalf especially for the ZESA and Bulawayo City Council payments.

Finally, he averred that as far as he was concerned, the stamps on the receipts appeared to be the same with no difference at all.  He put the state to proof including the  production of bank statements where possible like in the ZIMRA and bank payments.

In a long judgment, the trial magistrate reasoned in the main that the complainants are many and varied.  They also operate independently.  She resolved that apart from utility/service providers such as ZESA and the Bulawayo City Council, institutions like CBZ, ZIMRA and ZEDTC also operate independently of each other.  She thus reasoned that when they all contend that they did not receive the monies supposedly paid to them and when they all contend that they did not receive payments despite the receipts and deposits slips produced by the accused which they all claim do not originate from their institutions, it is more than sheer coincidence.  Quoting the authority in Mutsinziri vs The State 1997 (1) ZLR 6 (H) and G. Feltoe’s Criminal Defeva’s Handbook, she convicted the appellant on “similar fact evidence” although she found him not guilty and acquitted on 18 of the 49 counts.

It has been argued on appellant’s behalf on appeal that the learned trial magistrate erroneously relied on the evidence of state witnesses whose evidence had no evidential value.  For instance, it has been argued that the CBZ manager did not take the court in a step-by-step, deposit slip by deposit slip, to show the alleged discrepancies and faults on the slips that were said to be fake.

It was also argued for instance, that in some counts such as counts 7, 8, 9, 13, 15, 18, 20, 22, 23, 26, 28, 32, 35 and 41, there were no cash slips marked as exhibits but the appellant was convicted.  One can only assume that having been convinced that “similar fact evidence” will suffice to convict, the magistrate may have not seen it necessary to have each and every count’s receipt (s) produced and scrutinized.  But I believe that that is the very essence of similar fact evidence, to compare and see the striking similarities.

The State on the other hand filed a detailed response is heads of argument and equally detailed supplementary heads.  I must say that the court found the heads by Mr N. Ndlovu for the State quite well researched and useful.  The State submitted that the appellant’s condition was unsafe and could not be allowed to stand.

It should be noted that S v Mutsinziri (supra) dealt at length with the difficulty of relying on similar fact evidence in circumstances that do not relate to past convictions but to multiple counts in the same state case.  The court went on to show under what circumstances such similar fact evidence may nonetheless be relied upon to convict as was the case in Mutsinziri’s case.

See also S v Marange & Ors 1991 (1) ZLR 244 (SC)

In State vs Banana 2000 (1) ZLR 607 (S) the court per GUBBAY CJ (as he then was) adopted and pronounced the position taken by the House of Lords in R v P [1991] 3 ALL ELL 337 where Lord Mackay explained that the law does not require striking similarity as an indispensible elements of admissibility, and that it was unwarranted to restrict the admissibility principle in a manner which gives decisive effect to one particular way of describing probative significance.  The court thus departed from the earlier held positions in cases such as S v Nzara 1987 (1) ZLR (S) 2 100D; S v Mupah 1989 ZLR 279 (S) at 284B and Mutsinzini’s case itself.

The learned GUBBAY CJ (as he then was)  stated that the learned judge in the court

a quo had dealt with the general rule applicable to the admission of similar fact evidence but he pointed out that it was clear that in our jurisdiction, the test that has always been applied, namely that the similar facts must be of such an unusual nature and striking similarity that it would be an affront to common sense to assume that the similarity to the offence charged was explicable on the basis of coincidence.  The test now is not only the striking similarities but that the admission of similar fact evidence is exceptional and requires a strong degree of probative force.  The test in every case must not be whether the events sought to be proved by the prosecution are strikingly similar to the offence charged but whether their probative contribution is such as to outweigh the prejudice to the accused.  The judge must first decide whether there is material upon which the court could be entitled to conclude that the evidence of one victim, on what occurred to that victim in one count, is so related to the evidence given by another victim about what happened to him in a different count to the extent that the evidence of the first victim provides strong enough support and probative contribution to the evidence of the second victim to make it just and proper to admit it, notwithstanding the prejudicial effect to the accused.

It is true, as submitted by the state, that the court a quo’s reasons for acquittal in some counts contradicted the reasons for conviction in other counts; for example the conviction in counts 7, 8, 9, 11, 13, 15, 16, 17, 18, 19,20, 21, 22, 23, 25, 26, 28, 29, 32, 33, 35, 36, 38, 40, 41, 42, 44 and 45, as compared to the reasons for acquittal in counts 2, 3, 4, 8, 10, 14, 24, 30 and 37.

It should be noted that the state witness Annette Posthumus, the bookkeeper of David Power and Eracle A Trading, testified and admitted that she got all tax clearances throughout with no problems, allegations or queries of outstanding payments.  She admitted in cross-examination that ZIMRA would not have issued her with tax clearances if there was no proof that her company had paid.

She ultimately said the problem therefore could have been with the accused, the bank or ZIMRA.  She was not the only witness who left room for doubt as to whether the evidence pointed only to the guilt of the accused.  In our view, the very detailed concession by the State that the conviction by the court a quo on similar fact evidence was a gross misdirection and that once the legal basis for the conviction is held to be wrong, the conviction itself is unsafe and cannot stand, was judiciously and properly made.

Accordingly, the appeal is upheld.  The conviction and sentence by the court a quo is set aside.

Takuva J …………………………………………. I agree

Samp Mlaudzi & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners