THE State V Isaac Rusike

### Preamble
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HB 152/19
HCT 04/19
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THE STATE

Versus

ISAAC RUSIKE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 30 SEPTEMBER & 3 OCTOBER 2019

Criminal Review

K. Ndlovu for the state

Accused in person

MAKONESE J:	This matter has been referred for sentence in terms of section 54(2) of the Magistrates’ Court Act (Chapter 7:10).  The accused was arraigned before a Provincial Magistrate sitting at Gweru on allegations of contravening section 60(3)(A) (a) of the Electricity Act (Chapter 13:05). The provision criminalises the cutting, damaging, destruction or interference with any apparatus for generating, transmitting, distributing or supplying electricity.  It was alleged by the state that on the night of 3rd of April 2017 the accused was apprehended after he had been seen by state witness cutting down electricity transmission cables belonging to the National Railways of Zimbabwe.  The accused pleaded not guilty to the charges.  Despite his protestations, he was convicted after a full trial.  The matter has been referred to this court after the court a quo’s realization that it does not have the jurisdiction to pass the 10 year mandatory sentence provided in the penal clause forming the basis of the conviction.

Whether he accused was properly convicted

Before this court can consider the propriety or otherwise of passing the mandatory sentence of 10 years, the court shall consider the submissions that have been made by state counsel, Mr Ndlovu.  In his written submissions, he contends that there are a number of aspects of the evidence adduced in the court a quo that render the conviction safe.  It is not in dispute that on the 3rd of April 2019, 24 metres of 19 and 61 core electric cables were stolen from the National Railways of Zimbabwe.  Evidence was led from a key witness ABRAHAM MAFIYO, who testified that on the evening in question they were going around doing their duties.  They were at 99 Gweru, National Railways security camp, when they spotted 5 men crawling in the premises by means of lights and torches.  When they sought to confront those men, they disappeared into the bush.  They observed that the electrical cable had been cut.  At that stage a train from Dabuka approached and lit the area.  The suspects ran in different directions.  It is alleged that accused was one of those suspects who ran into the bush.  Accused was arrested that night and handed over to the police on allegations of cutting, damaging or destroying electrical cables.  These allegations formed the basis of the case against the accused.

Accused’s defence

Accused was not represented during the trial.  He nonetheless gave an explanation denying the allegations against him.  He averred that on the night in question he was coming from Country Club where he was watching soccer.  He met the complainants who asked him about electric cables.  He denied any knowledge of these cables.  The National Railways security guards told him that he was not supposed to use that road.  The accused was requested to follow those guards.  Accused was asked about the other suspects who had fled.  He denied any knowledge of the persons.  Accused was detained and was later taken to Gweru Central Police Station.  He was told that he had been involved in the cutting of electrical cables.  The accused indicated to the police that he had been arrested a kilometre away from the place where the cables had been cut.

Evidence of identification

Evidence of identification is notoriously unreliable unless supported by other evidence.  It is common for witnesses to make genuine errors on the question of identity.  The witnesses stopped the accused who was walking on a public road near the vicinity of the scene where the cables had been cut.  There was no attempt by the witness to indicate to the court a quo how the identification of the accused led to his arrest.  The courts have to be extremely cautious when dealing with evidence of identification.  see: S v Vhera 2003 (1) ZLR 66 H.

In the present case, the gravamen of the charge is the cutting, destroying, interfering with electricity transmission apparatus.  The evidence of identification of the “crawling men is fizzy and the cursory and difficult to rely upon in view of the circumstances.  This incident happened in a “passing glance” and it was at night.  Visibility was poor and the men were crawling.  Even if it were accepted that accused was arrested as he was trying to flee it was difficult to bring him to the ambit of the provisions of the act he was alleged to violate.  There is no independent evidence to prove that the accused was a part of the 5 member crew that cut the cables.  Accused avers that he was nowhere near the scene of the crime.  He further indicated that it was the police who took him to the scene where the cables had been cut.

It is settled law that no onus rests on the accused to convince the court of the truthfulness of any explanation he gives.  If he gives an explanation, even if that explanation is impossible, the court is not entitled to convict, unless it is satisfied, not only that the explanation is improbable, but that it is beyond reasonable doubt, false.  If there is a possibility of his explanation being one then he is entitled to an acquittal. See R v Difford 1957 AD 370.  The degree of proof in a criminal trial is therefore that the accused’s defence must be found to be palpably false before a verdict of guilty can be returned.  In Milner v Minister of Pensions [1947] 2 ALL ER 372 (K8), LORD DENNING described the degree of proof at page 373H as follows:

“… and for that purpose the evidence must reach the same degree of urgency as is required in a criminal case before an accused is found guilty.  The degree is well settled.  It need not reach certainty, but is must carry a high degree of probability.  Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt.  The law would fail to protect the community if it admitted fanciful probabilities to deflect the course of justice …”

I am satisfied that the evidence against the accused was weak.  His defence was not controverted.  It was not shown in the slightest degree that his defence was a fanciful possibility.  It was not safe to convict the accused.

Jurisdiction of the trial magistrate

The jurisdiction of a criminal court is confirmed by statute.  In this case it is derived from the Magistrates’ Court Act.  The trial magistrate in his correspondence to the Prosecutors at Gweru indicated that his sentencing jurisdiction is 5 years.  He currently notes that a contravening of section 60A (3) of the Electricity Act warrants the imposition of a mandatory sentence of 10 years.  The Act does not provide for extended or special jurisdiction for a contravention of section 60 (A) (3) of the Electricity Act.  The trial magistrate ought to have been aware that in the event of a conviction he did not have jurisdiction to impose the mandatory 10 year sentence.  It seems to me that the trial magistrate ought to have allowed a magistrate with competent jurisdiction to handle the matter.  I cannot understand why trial magistrates take on cases, go through the motions of a trial, then before imposing sentence they seek referral of the matter in terms of s54(2) of the Magistrates’ Court Act.  This only results in unnecessary delays in the sentencing of the accused and imposes an undue burden on the High Court upon such referral.  The High Court judge seized with the matter has to go through the record afresh before passing sentence.  This approach has to be discouraged.  The accused in this matter was convicted way back in May 2017.  The accused has spent over 2 years in custody pending this sentence.  The state does not support the conviction.  The accused is entitled to his acquittal but has been severely prejudiced by the resultant delays.

Conclusion

For the aforegoing reasons the accused’s conviction is unsafe.  This is a matter where this court must exercise the review powers in terms of section 29 of the High Court Act (Chapter 7:06) and quash the proceedings of the court a quo.

In the result, and accordingly the following order is made:

The conviction is set aside.

The accused is entitled to his immediate release.

Mabhikwa J ………………………………….. I agree

National Prosecuting Authority, state’s legal practitioners