THE State V Thembinkosi Mhlanga

### Preamble
1
HB 220/22
HCAR 1080/22
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THE STATE

Versus

THEMBINKOSI MHLANGA

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 4 AUGUST 2022

Criminal Review

MOYO J:	The accused person in this case was convicted after a full trial of contravening section 38 (4) (c) of the Railways Act Chapter 13:09 that is “digs, excavates, drills, tunnels under, or otherwise tempers with the ground within 45 meters on either side of the middle of a railway to the actual or potential detriment of the safety of railway traffic.

The facts of the matter are that on 19 February 2022, the accused, at about 1800 hours went to the National Railways of Zimbabwe Nalatale siding where he dug, excavated, cut and stole 30 metres of armoured signal copper cables which he took to his home.  On the 21st of February 2022, detectives received information to the effect that the accused was responsible for the theft of National Railways of Zimbabwe signal copper cables from Daysfield siding, Somabula, Gweru.  On the same day detectives and National Railways of Zimbabwe personnel reacted to the information, proceeded to the accused’s residence where a search was conducted leading to the recovery of 10 pieces of National Railways of Zimbabwe insulated copper cables from his disused hut and he was immediately arrested.

In his defence outline, the accused person told the court that he admitted that he was found with copper cables, but that one Ndumiso is the one who knows.  He stated thus:-

“The copper cables belong to one Ndumiso who fled to South Africa.  When he left for South Africa, he left the cables in a sack and I got to know that they were cables when the detectives came.  The cables were left with my wife by Ndumiso Mhlanga my brother.”

The first state witness Washington Masisi told the court that he was a loss control security and that he arrested the accused.  He told the court that they had information that accused would dig and cut copper cables and sell them to Cuthwell Dube.  He said he did not find accused digging cables but that informers described him properly.  He also stated that cables were recovered from accused’s house and that other cables were in a disused hut.  He also told the court that accused had been seen one night by some people.  He was questioned as to whether they investigated accused’s defence and he stated that:-

A -	Thembinkosi Ncube told us that they belonged to accused and accused’s wife confirmed.

He was further asked

Q -	Did you manage to arrest the said buyer Cuthwell Dube

A -	Yes

Questioned that accused said the cables belonged to his brother, he said accused did not mention that they could have investigated.  Accused put it to this witness during cross examination that himself and his wife were assaulted during his arrest.  It was also put to this witness that cables were from Ndumiso’s house and the witness answered by saying:-

“That is not true, Ndumiso was never mentioned by our informers.  We were directed to accused’s homestead.”

The sum total of this witness’s evidence is that he relied on the evidence of the informers and he recovered the cables from 2 huts at accused’s homestead, however, his evidence was not sufficient to poke holes in the accused’s version that the cables belonged to one Ndumiso who fled to South Africa.  Accused denied that part of the cables were found in his hut and that he knew Cuthwell Dube.

The state was therefore duty bound to call Thembinkosi Ncube, the eyewitness to the digging of the cables by the accused and the purported informer as well as Cuthwell Dube who would confirm that accused sold him the cables.  In light of accused’s protestations, the evidence by the first state witness could not take the state case anywhere.

The evidence of the second state witness Tachafara Makambe, did not add any weight to the state case, neither did it rebut accused’s version.  It was basically similar to that of the first witness in all material respects.  In fact this witness was asked:-

Q -	Accused said the cables belonged to his brother who went to South Africa

A -	I dispute that

It is not for the witness to make a bare rebuttal of accused’s version.  There must be cogent reasons evidentially to rebut accused’s version.  Under cross examination, accused  asked this witness:-

Q -	Why deny that the cables belong to Ndumiso?

A -	Your colleague said you did it together

Again, this Cuthwell is mentioned as the person who nailed the accused person.  This witness could not testify on behalf of Cuthwell.  The state then closed its case after leading these 2 witnesses whose evidence could not establish that it is accused who dug the railway infrastructure and took the cables to his home.  Whilst finding the cables at his home, could be held as establishing a prima facie case, his explanation that in fact the cables belonged to his brother Ndumiso who went to South Africa, was a reasonably possibly true version, which the state did not rebut in any way.  The state should have called the person who saw accused digging the cables as well as Cuthwell who said he bought the cables from the accused.  Without that critical evidence, the state case is limping and it cannot be held that the state indeed proved its case against the accused person beyond a reasonable doubt.  The trial court fell into error in not assessing the accused’s version.  The accused’s version is probable, that there is a Ndumiso, who is a brother, so they lived in the same homestead, who was the owner of these cables.  At the least, the state should have called the investigating officer, who should have lead evidence as to investigations pertaining to accused’s defence.  Whether it was established if Ndumiso does exist and if he stayed in the same home.  That the cables were found at the homestead only cannot be proof beyond a reasonable doubt that then they belonged to the accused person and not Ndumiso.

The state in this case failed to establish the essential elements of the offence in that:-

1)	No evidence was led to prove that accused did dig the cables and cut them.  There is only hearsay.  The person who allegedly saw the accused person was not called to testify.

2)	The accused person came up with a version that the state needed to rebut to succeed.  That in fact the cables belonged to his brother Ndumiso who had left for South Africa.  That is a reasonable explanation in the absence of a rebuttal.  What if the cables were dug by Ndumiso and taken to the home Ndumiso shared with accused?  What if the informers saw Ndumiso being accused’s brother digging and taking the cables.  What if Ndumiso did leave the cables there before going to South Africa?  There is a reasonable doubt in this case, and in our criminal justice system such a doubt favours the accused person.  He must be acquitted for as long as the state case fails to meet the necessary threshold, he must be given the benefit of the doubt.  He deserves an acquittal for as long as his version is possible or probable, that is the law.

It is for these reasons that the verdict by the trial court will be set aside and substituted with:-

“1)	Accused is found not guilty and is acquitted.”

2)	The accused has already been released from custody

Moyo J……………………………………………..

Makonese J……………………………………….I agree