Itai Muzambi v The State

### Preamble
1
HB 273/20
HCA 36/19
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ITAI MUZAMBI

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MAKONESE AND KABASA JJ

BULAWAYO 26 OCTOBER AND 19 NOVEMBER 2020

Criminal Appeal

T Dube, for the appellant

B Gundani, for the respondent

MAKONESE J:	The appellant was tried and convicted by a Provincial Magistrate sitting at Bulawayo on a charge of theft as defined in section 113 of the Criminal Law Codification and Reform Act (Chapter 9:23).  The appellant denied the charge but following a full trial she was convicted and sentenced to 36 months imprisonment.

Aggrieved and dissatisfied with both conviction and sentence she noted an appeal in this court.

Factual background

On the night of 10th September 2018 complainant met the appellant at Red Café Night Club along Robert Mugabe Way and Corner 11th Avenue in Bulawayo.  Complainant made sexual advances towards the appellant.  The two had some beers in the club before leaving for the complainant’s house in Selbourne Park.  The two had agreed to spend a night together.  The appellant would be paid Z$30 for her services.  During the course of the night the complainant fell asleep only to wake up at 0730 hours.  The appellant was nowhere to be seen.  Complainant searched his pockets and discovered that his Standard Bank ATM card was missing.  An amount of Z$140 which was on the computer table was also missing.  Complainant quickly left his home and went to his bank to report that his ATM card had been stolen.  The complainant proceeded to make a police report.  Around 0900 hours complainant noticed that text messages on his mobile phone indicated that his ATM card had been in active use as early as 0435 hours.  Later that morning after the card had been blocked by the bank a total of US$6 095.90 had been withdrawn from his bank account through various purchases around shops around the city.  The police searched for the appellant without any success.  A visit to Red Café Club where appellant had met complainant did not yield positive results as appellant was not known at the club.  CCTV footage at N. Richards indicated that appellant had made some purchase at that shop.  The driver of a motor vehicle which had been used to transport the goods, purchased by the appellant was located.  The driver informed the police that he had taken the goods to a house in Lobengula.  The driver led the police to the location where the goods had been delivered.  The appellant was identified at that address and was immediately arrested.  Initially, the appellant denied the charge and stated that complainant was her boyfriend for 7 months prior to this incident.  The appellant had alleged that the charges were being brought against her in order to fix her after complainant had been confronted by another man who had seen her using the ATM card.  The appellant was to change her defence as the trial progressed.

The State Case in the Court A quo

The state led evidence from three witnesses.  The first witness, the complainant narrated that he met the appellant at Red Café bar where they left around 0300 hours in the morning of 10th September 2018.  An agreement was reached to go and spend the night at complainant’s residence in Selbourne Park.  Appellant would be paid for her sexual services.  After a sex romp complainant fell asleep.  When he woke up appellant had disappeared.  His Standard Bank ATM card was nowhere to be found.  An amount of Z$140 that was on the computer desk was also missing.  Complainant rushed to his bank and instructed them to block the card.  An amount of US$6 095.90 had been withdrawn from the complainant’s account using the ATM card.  Investigations led to the arrest of the appellant.  The second witness, Munyaradzi Dube is a police officer stationed at Bulawayo Central Police.  The witness advised the court that they attempted to obtain appellant’s particulars at Red Café bar without success.  The witness watched CCTV footage at N. Richards shop.  This led them to the driver who had transported goods purchased by the appellant at this shop.  The appellant was subsequently arrested at a house in Lobengula.  The third witness, Greetings Murambiwa was the driver hired to ferry goods from various shops by the appellant.  He is the one who led the complainant and the police to the appellant’s house, leading to her arrest.  All the state witnesses gave evidence in a satisfactory manner.  The trial Magistrate in the court a quo believed the narration given by the state witnesses.

The Appellant’s Defence In The Court Aquo

The appellant elected to give evidence under oath in her defence.  It is common cause that the appellant had in her possession complainant’s ATM card and that she made purchases amounting to US$6 095.90.  Goods valued at US$5 743.32 were recovered from her together with the Z$140 in bond notes.

The appellant averred that she had a long standing relationship with the complainant.  She alleged the complainant had offered to sponsor her business venture.  An analysis of the events that unfolded in this matter indicates that this version is totally false. It was not true that complainant was appellant’s boyfriend.  The police had to go through various CCTV footages to locate the appellant.  The breakthrough occurred when the driver who delivered her goods to her house led the police to the Lobengula house.  In her defence outline the appellant did not deny that she spent the night at complainant’s house.  She alleged that complainant gave her the ATM card in the morning to enable her to make purchases.  In her oral evidence, the appellant made a complete departure from her defence outline averring that she never went to complainant’s house on the day in question and that complainant had given her the ATM card the previous day.  The prevarication in appellant’s defence is impossible to reconcile and proves that her defence is palpably false.  She alleges in her defence outline that she made a miscalculation by asking her other boyfriend Harrison Chiocha (defence witness) to assist her with purchase.  Chiocha had queried where she obtained the ATM card and threatened her with a knife.  She then confessed that the card belonged to her other boyfriend, who happened to be the complainant.  They went to complainant’s house and a confrontation ensued.  In her oral testimony, the appellant departed from that version, and denied ever going to complainant’s house.  The defence case was so discredited and was clearly false.  The evidence of Harrison Chiocha did not assist at all and was clearly a lie.  He stated that complainant had approached him at appellant’s house claiming that appellant was his wife.  He averred that this was the same day appellant had arrived with an assortment of goods including a generator at his residence.

The trial Magistrate concluded that appellant’s witness was a “coached” witness who did not do a very good job.  He was not a truthful witness.  He could not even explain when the alleged offence took place.  The trial court concluded that the appellant’s defence was a hopeless concocotion.

FACTUAL FINDINGS BY THE COURT A QUO

The trial court a quo made a specific finding that the appellant had taken complainant’s ATM card unlawfully and gone on to make purchases totaling US$6 095.90.  The complainant stole the ATM card and cash in the sum of Z$140.  That much is undisputed and beyond doubt established by the evidence.  In his response to the Notice of Appeal, the learned Magistrate reasoned as follows:

“The credibility of the witness was assessed on a number of basis which included consistency, motive to lie, interests in the matter among others.  It was unavoidable for the court not to take judicial notice of the material departure from the defence outline by the accused.  Legal Practitioners work on instructions from their clients, it is ludicious for the appellants to divorce themselves from their defence outline and marry it to their erstwhile legal practitioner as she never made any objection when it was given.  The appellant cannot be allowed to give a defence outline, maintain it in cross examination and go on to give a completely new version in their defence case.  Such inconsistence cannot escape judicial notice.”

WHETHER THE APPELLANT WAS CONVICTED ON A COMPETENT CHARGE

The appellant contends in this appeal that the court a quo seriously misdirected itself at law in convicting the appellant of an incompetent charge of theft, in the circumstances in clear disregard of the peremptory provisions of law under section 113 (4) of the Criminal Law Codification and Reform Act with which she was charged.  In terms of section 113 (4) of the Criminal Code it is provided as follows:

“For the avoidance of doubt it is declared that where a person, by means of a “misrepresentation as defined in section 135, takes any property capable of being stolen, intending to deprive another person of ownership, possession or control of the property, the competent charge is fraud and not theft.”

On the facts of the matter the appellant did not make a misrepresentation to the owner of the card at the time she stole the ATM card.  The appellant stole the card and went on to use the stolen card to purchase various goods to the prejudice of the complainant.  In making the purchases at the various shops she did not misrepresent any fact to their detriment or prejudice.  It is the complainant who suffered prejudice as money was taken from his account without his authority.  The mental elements in the offence of theft entails the intention to deprive the owner permanently of the ownership possession and enjoyment of the property subject of the charge.  Theft is a continuing offence.  When appellant stole the ATM card, she committed an act of theft.  By spending the money on the debit card account she was clearly committed and perpetrating the theft of the cash.

It is my view that the conviction on a charge of theft was competent.  The court a quo properly made a finding that complainant was a credible witness.  The appellant’s version was riddled with inconsistencies and outright lies.  Her version is not only improbable but inherently false.  It is trite that in criminal cases the state bears the onus of proof beyond reasonable doubt.  An accused ordinarily bears no burden to prove their innocence in our adversarial system.  Where the state proves all the essential elements of a charge beyond reasonable doubt, the court is entitled to convict an accused.  An accused will only be given the benefit of the doubt where the state fails to prove an essential element of a charge or facts to prove its case beyond reasonable doubt.  See: S v Kuiper 200 (1) ZLR 113 (S), R v Difford 1937 AD 370 and S v Makanyara 1996 (2) ZLR 231.

AS AGAINST SENTENCE

Appellant argued that the sentence imposed was so severe as to induce a sense of shock.  It was further argued on behalf of the appellant that the court a quo paid lip service to the need to exercise mercy in sentencing female first offenders.  The court a quo took into account all the mitigating features of the case.  The court was also acutely aware of the fact that appellant was pregnant at the time.  What however weighed heavily against the appellant is that she was not a first offender.  In fact she was a recidivist.  She had two suspended sentences on similar offences of theft.  Those suspended sentences were brought into effect.

The general principle of sentence is that the court ought to take into consideration all the factors in mitigation and weigh them against the aggravating circumstances.  An accused will be handed a non-custodial sentence where other forms of punishment are appropriate.  In the exercise of his sentence discretion, the court a quo applied its mind correctly and concluded that appellant deserved a custodial sentence.  Inspite of the fact the appellant was pregnant the court was correct in finding that a custodial sentence was warranted.  Evidence on the record indicates that as regards the previous convictions, appellant was found to be pregnant and avoided imprisonment.  It would seem that appellant was pregnant each time she faced conviction and sentence.

It is settled law that the court may only interfere with the sentence discretion of a lower court where there is a misdirection.  See: S v Nhumwa SC 40-88 and S v Ramushu and Ors SC 25-93.  For the aforegoing reasons I find no merit in the appeal against sentence.

Accordingly and in the result, the appeal is dismissed in its entirety.

KABASA J…………………………………………. I agree

Ncube and Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners