Artwell Danda and Takazivei Kapira v The State

### Preamble
1
HH 176-13
CA 205/12
CRB B 263/12
ARTWELL DANDA
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ARTWELL DANDA
and
TAKAZIVEI KAPIRA
versus
THE STATE

HIGH COURT OF ZIMBABWE
HUNGWE J
HARARE, 5 June 2013

(In Chambers in terms of Section 35 of the High Court Act, [Cap 7:06])

Criminal Appeal

HUNGWE J: The appellant was convicted of assault as defined in s 89 of the Criminal Law (Codification & Reform) Act, [Cap 9:23] and sentenced to six months imprisonment of which three months were suspended for 2 years on condition of good behavior. He noted an appeal against both conviction and sentence. The Attorney-General has indicated that he does not support the conviction and filed a notice in terms of s 35 of the High Court Act [Cap 7: 06]. We considered the concession proper for the reasons that follow.

The evidence led at trial came from three witnesses, namely the complainant one Paison Kembo, Virginia Karamba and a police officer Arnold Marikopa. The need to treat the evidence of all three witnesses with suspicion arises from their relationship with the appellant. This, however, is not to say that in each case where there is a previous relationship or dealing between State witnesses and the complainant, the need for treating the witness evidence with suspicion arises. In this particular case, however, in spite of the appellant raising the spectre of possible false incrimination, the court failed to heed the warning.

The complainant had previously been employed by the appellant as security guard. He and another guard arrested a group of people found stealing from appellant’s maize field. He let go the maize thieves to the chagrin of the appellant. As a result, the appellant suspected that complainant was involved in the theft. Virginia Karamba was part of the thieving group which the complainant released. As such she was not an entirely independent witness. Arnold Marikopa had, in an unrelated encounter, attempted to arrest the appellant. In that encounter, it is common cause that he failed to arrest appellant after the appellant allegedly threatened him with a gun. Further, this witness faced disciplinary charges within the police force arising from the manner in which he initially handled the matter now subject of appeal. It cannot be said, in these circumstances, that his evidence against the appellant was free from bias.

In S v Elsworth SC 55/95 KORSAH JA stated;

“……it seems to me that where a wrongdoer, caught red handed turns around to make counter allegations of a more serious offence against the person who he has wronged, his or her testimony against that other person should be received with utmost caution.”

Each of the three State witnesses had a motive to embellish his or her evidence against the appellant. The signs for danger were quite apparent from the contradictions which the appellant was able to demonstrate during cross-examination. The learned trial magistrate failed to treat these contradictions appropriately preferring, instead, to gloss over them as minor. The State outline alleges that a knobkerrie was used to assault the complainant. The complainant denies that a knobkerrie or log was used to assault him. Such a contradiction is by no means minor if considered in light of the possible motives to embellish his evidence by the complainant. In like manner when Virginia stated that she was part of the group released by the complainant, the trial court should have scrutinized her evidence more closely and treated it with more circumspection. The police officer had a clear motive to provide incriminating evidence against the appellant. He had previously failed to effect an arrest upon him after appellant allegedly threatened him. In the present case he had an opportunity to fix the appellant by supporting other witnesses who volunteered false evidence against the appellant. Nothing was said in the judgment to dispel this possibility. Without clear evidence excluding the dangers of false incrimination, any conviction premised on such suspect evidence remained unsafe.

The court seemed to have found some corroboration in the medical report admitted in evidence by consent. Unfortunately, the medical report did not provide the required corroboration as there was evidence of complainant’s pre-existing dental condition which remained uncontroverted.


In light of the above, the appeal against conviction succeeds. There was no appeal by appellant’s co-accused who happened to be his wife. She was sentenced to community service. In my view, the above observations apply to her with equal force. In the exercise of this court’s review powers, the conviction against the wife, Takazivei Kapira, is quashed and her sentence is set aside. In the result therefore I make the following order.

The appeal against conviction is allowed. The verdict in the court a quo is substituted with the following:

“Both accused are found not guilty and acquitted.”

MAVANGIRA J: agrees

Gumbo & Associates, appellant’s legal practitioners
Attorney-General’s Office, respondent’s legal practitioners
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