Rudo Mhlope v The State

### Preamble
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HH 652-18
Civil Appeal No. 704/11
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RUDO MHLOPE

versus

THE STATE

HIGH COURT OF ZIMBABWE

BERE J & TAGU JJ

HARARE, FEBRUARY 27, 2014 4 & OCTOBER 17, 2018

D. C. Kufaruwenga, for the appellant

I. Muchina, for the respondent

BERE J:  This is an appeal against both the conviction and sentence of the appellant who appeared at Gweru Magistrates Court on 21 September 2011 facing one charge of contravening section 113 (2)(a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23[, alternatively Criminal abuse of duty as a Public Officer as defined in section 174(i)(a)(b) of the Criminal Law (Codification & Reform Act [Chapter 9:23].

Upon her conviction on the main count the appellant, together with three of her co-accused who are not before us were sentenced to fifteen years’ imprisonment two years of which were suspended for five years on the usual conditions of future good conduct, with a further two years suspended on condition each accused pays a pro-rata payment of $150 087.00 on or before 31 December 2015 through the clerk of court, Gweru Magistrate Court.

THE GROUNDS OF APPEAL

The appellant’s cumulative grounds of appeal show that she takes issue with both her conviction and sentence.

AD CONVICTION

On conviction, and in summary form, the appellant has taken the view that the evidence which the court a quo relied on in convicting her did not reach the threshold of proof beyond a reasonable doubt more particularly in that the court a quo failed to fully appreciate the impact of the evidence presented against her as a whole.

The appellant’s position is that, looked at in this totality, the evidence tendered by the State did not amount to proof beyond a reasonable doubt against the appellant to warrant her conviction.

AD SENTENCE

As regards her sentence, the appellant took the view that the sentence imposed by the court a quo induces a sense of shock to warrant interference with this court. She argued that the sentence was too harsh given the compelling mitigating circumstances advanced on her behalf.

Consequently, the appellant argued that in the event of her conviction being upheld her sentence be revisited by this court.

THE RESPONDENT’S POSITION ON GROUNDS OF APPEAL

The respondent’s position on appeal against conviction was to strenuously oppose it on the grounds that all the essential elements of the offence charged were sufficiently canvassed and established beyond a reasonable doubt. The respondent therefore supported the conviction of the appellant.

On sentence, the respondent agreed with the appellant that the sentence was too severe and that the appellant’s appeal in this regards succeeds. The respondent proceeded to suggest a lighter prison sentence with a portion suspended on condition the appellant performs community service for specified hours.

FACTUAL BACKGROUND

The facts which are not in dispute are that the appellant and her co-accused persons were employed by the Ministry of Home Affairs, Passport Office, in Gweru. They were employed in the accounts office as processing officers. Their duties included receiving stationery from the Passport Head Office, Harare, and issuing out same to different sections in the department.

Amongst the documents that the appellant and her three co-accused would receive from their Central Registry Office in Harare, for onward processing were Emergency Travel Documents (ETDs). The appellant and her colleagues would report directly to the Provincial Registrar.

It was the State case that both the keys to the accounts office and to the safe where the ETDs and other related security items were stored were kept by the appellant and her co-accused on rotational basis.

Some ETDs which ought not to have been in circulation were accidentally recovered. Investigations which subsequently occurred traced the origins of the ETDs to the Registrar’s Office, Gweru, accounts section which was being manned by the appellant and her co-accused persons. An audit report that followed established that in fact, 12 007 ETDs had disappeared from the accounts office after the office had acknowledged receipt of same. It was the disappearance of these ETDs that led to the appellant and her co-accused being charged as already outlined above. It was not in dispute that the office that housed these ETDs had not been broken into hence the appellant and her co-accused were suspected to have stolen the ETDs.

The appellant and her co-accused persons denied the allegations, the common thread in their defence outlines being the complete denial of having stolen the ETDs either individually or collectively. They all stated that they were surprised to learn of the missing ETDs.

Despite having pleaded not guilty, the appellant and her co-accused were convicted by the court a quo on the main court and sentenced as aforesaid.

THE STATE CASE

The State case was centered on the evidence of three witness, namely Agness Descree Tapiwa Gambura (the Gweru Provincial Registar), Changara (the internal auditor) and Assistant Inspector Simon Sibanda who was the leader of the investigating team which recovered some of the ETDs from various travellers at the border post at Beitbridge, Chirundu, Kariba and Plumtree.

Other than relying on viva voce evidence from the three witnesses, the state case was also anchored on a number of issue vouchers for the ETDs and exhibit 4 (the security items register, for the Gweru office) which assumed centre stage in the proceedings in the lower court.

THE APPELLANT’S CASE

The appellant’s case in the court a quo, largely consisted of her evidence and that of her co-accused persons.

THE CONVICTION BY THE LOWER COURT

In assessing the evidence that was placed before her, the learned Magistrate reasoned as follows:

“Under Cross examination the accused admitted that the basics of accounting would require one to account for what they hold in trust and that at the time they were custodians of security items. The accused also admitted that as a result, they were required to take caution of the safety of the documents thereby put in place measures that those items were safe.

By their own admissions it is clear from the evidence that the accused were all in the accounts office and the basics of accounting were all known to them. The accused even stated their defence outline that it could not be anyone from outside their office who could have stolen the ETDs but someone from within. This therefore goes on to confirm that was said by the state witness that the accused were the ones that were solely responsible for the office keys and that there was no report of a break in or theft.

It is noted from the security items register that there were certain anomalies that were noted. Accused persons were expected to endorse their names on recipients and collections but this was not done. Such anomalies could not be explained either considering the volumes of the documents that they were receiving and the security risk the documents were. Surely accused were expected to exercise extreme caution in this regard.

The accused person admitted that in the absence of a break in, the only reasonable explanation was that they took the documents and that they admitted having failed to account for the documents.

In my view this was an admission the charge by the accused persons and I have no such doubt that this admission in their defence case was only made as a realization that the state witness had been able to give their evidence well and that their credibility could not be doubted at all by the court. On the other hand the court noted that the accused just made a bare denial of the charge. There was no defence at all to offer to the court and surely having realised the strength of the state’s case against their case, the accused had to plead to the charge.

It is on this basis that the court finds in favour of the state that accused were holding trust property. When they were asked to account for it they failed, and more so these documents were found in the hands of wrong people or people that did not deserve to have them. I therefore find the accused all guilty of the main charge and acquitted on the attendance.”

THE APPELLANT’S SUBMISSION

In attacking the judgment of the court a quo, Mr Kufaruwenga who appeared for the appellant argued that there was virtually nothing in terms of the material that was placed before the trial magistrate that could sustain a conviction of the appellant and her co-accused persons. Counsel had no brief from the other three accused persons in the court a quo but he found it difficult not to refer to them as he laid the ground of acquittal on appeal of the appellant.

Counsel argued that, intention, being a vital component of the offence for which the appellant was charged was not established in the court a quo. It was further argued by counsel that the evidence did not disclose that the appellant had failed to account for the ETDs in order to bring her conviction within the ambit of the offence charged. It had not been demonstrated that the appellant had deliberately refused to or refrained from accounting for the stolen ETDs, so the argument went.

Finally, appellant’s counsel put up the argument that the court a quo deliberately understated the implications of the undeniable fact that the appellant did not have exclusive access to the safe where the ETDs were kept.

THE RESPONDENT’S SUBMISSIONS

Contrary to the position of the defence counsel, Mr I. Muchini who appeared for the State put up a spirited argument in support of the appellant’s conviction.

The State counsel properly identified the elements of theft as defined in Section 113(2)9a) of the Criminal Law (Codification & Reform) Act [Chap 9:23] and submitted that all these had been satisfied hence the appellant’s conviction.

Counsel highlighted the fact that in order to satisfy the elements of the offence charged, the State was able to establish that the appellant and her co-accused were the custodians of the ETDs. Counsel read the evidence to mean that the fact that the appellant and her co-accused persons had negligently managed exhibit 4 was indicative of their guilt.

In conclusion the State Counsel argued that the appellant and her co-accused persons had failed to proffer any reasonable explanation for the disappearance of the ETDs or a defence to the charge.

THE LEGAL POSITION

At the end of it all, the court a quo found the appellant and her co-accused guilty of the main count and acquitted them on the alternative count of criminal abuse of duty as public officers.

In this judgment I will therefore be guided by the law which regulates convictions under section 113(2)(a) of the Criminal Law (Codification & Reform) Act [Chap 9:23].

Intent to steal (animus furandi) is an essential element of theft. This position of our law is underscored by Jonathan Burchell when he states as follows: -

“The fault element of theft is intention. Given the definition of the crime, this means that the accused must intentionally effect an appropriation, intending to deprive the owner permanently of his property or control over his property, and knowing that he or she is acting unlawfully in taking it.”

Section 309 of the Criminal Procedure & Evidence Act [Chap 9:07] was specifically crafted to cover inter alia, the situation that confronted the court a quo in the instant case. McNally JA in the case of Oliver Mapurisa vs The State had occasion to provide some guidance in interpreting this section (then section 286). The learned Judge of Appeal crafted the position of the law as follows: -

“In attempting to prove theft by an official of goods under his control, it is a common and acceptable practice for the state to prove the existence of a system of control which demonstrates that the goods are missing, and that there is no other explanation for their absence than that the official concerned has misappropriated them. The technique of proof is enshrined in the Criminal Procedure and Evidence Act, in Section 286. It is known as proof of a general deficiency.

This method of proof requires a careful and thorough presentation of evidence by the prosecutor. All possible loopholes must be plugged. Three things essentially have to be established-

Goods received by the accused into his custody are recorded by him.

While they are in his custody no-one else has the ability to remove them.

and

When they leave his custody legitimately there is a recording system involving the signature of the recipient.” (my emphasis)

ANALYSIS OF THE JUDGMENT OF THE LOWER COURT

The learned Magistrate in the court a quo correctly noted that there was overwhelming evidence that the ETDs had been received and locked up in the safe in the appellant’s office and that the appellant and his co-accused were the only people who had access to the safe in question.

With respect, it would seem that the court a quo then proceeded to misdirect itself by using such a finding as a basis for criminal liability against the appellant and her co-accused. This is so because as correctly noted by the appellant’s counsel, the evidence accepted was that the appellant did not have exclusive access to the safe where the ETDs were kept. All the four accused persons had access to that safe. It is quite possible as the evidence from all the four accused persons suggested that any one of them could have stolen the documents. If this observation is correct (which should be the position), then it would be wrong to adopt a tariff approach to conviction by reasoning as follows; “because one of you stole then all of you must have stolen”. This is a case of theft where the intention of the individual must be considered before one can be visited with criminal liability.

The only other way the appellant could have been found guilty was if she was found to have acted in common purpose with her co-accused or as a co-perpetrator in terms of section 196A of the Criminal Law (Codification and Reform) Act [Chap 9:23].

There was no evidence which was tendered in the proceedings to show that the appellant and her co-accused had planned to steal the ETDs and indeed, stole them. It was in my view farfetched to infer from the limited evidence that this was the position because each of the few accused persons including the appellant gave reasonable explanation of what may have happened to the ETDs. They all said that any one of them could have taken the ETDs acting independently. Their main defence was that they did not know how the ETDs had been removed from the safe.

It would appear that if anything, the findings of the court a quo showed that the appellant and her colleagues were working with no supervision at all. There is evidence that their work was not regularly checked as confirmed by the numerous errors which they made on exhibit 4.

The evidence also shows that there were some flashes of negligence in the recording of information on exhibit 4 but such negligence cannot possibly be elevated to criminal liability in a theft case under this section. The threshold for criminal liability is much higher than for civil liability.

There were some conclusions which were made by the court a quo which are not supported by the evidence led in court. For example, it cannot possibly be the correct finding that in the absence of evidence of the safe having been broken to gain entry, then the only reasonable inference is that all the accused including the appellant stole the ETDs. It cannot be ruled out that any one of the four accused persons could have acted on their own without the knowledge of the others. In fact, this is what each of the accused persons stated in their evidence, both in chief and under cross examination.

The evidence as recorded, contrary to the findings of the court a quo does not show that any of the state witnesses gave credible evidence on the actual theft itself. All of them were quite clear that they did not know how the ETDs were removed from the safe. Even if it is accepted, that the three state witnesses were credible in so far as their individual accounts to court were concerned (as the court a quo seemed to suggest), that on its own would not have been decisive because this was a case which required more than the credibility of the State witnesses to secure a conviction. Even circumstantial evidence could not possibly have been relied upon to convict the appellant and her colleagues because of its insufficiency given the circumstances of this case. See the case of R v Blom.

The head of the investigation team that recovered the ETDs from various border posts could have done better by finding out from the holders of the ETD where they had obtained the documents from. Surprisingly, not a single beneficiary of the ETDs was called to testify. For example, there is no cogent reason why Sheila Zinhu (p82 of record) or Zivhu (p83 of record) who was found in possession of one of the ETDs was not called as a witness to explain who actually gave her the ETD. If this had been done, a clue to the theft of the ETDs could probably have been established beyond a reasonable doubt.

The appellant was adamant throughout the proceedings that she did not steal or take the ETDs and that she did not know how the documents ended up in underserving hands. It is not true that her position was unreasonable given the awkward set up of the accounts office where any one of the four accused persons had uncontrolled access to the safe.

The observation made by the state counsel that there was chaos in the accounts office was correct. However, this evidence cannot be used as the basis for criminal liability. It should be remembered that the appellant, a holder of a BA degree in African Languages and Culture made it abundantly clear in her testimony that she had not been properly trained in accounts despite working in the accounts office. The appellant said she had no idea what Treasury Instruction Handbook was all about. Her evidence was not controverted.

The second accused’s testimony was that he was a driver by profession and that most of the times he was the one assigned to go and collect the office requirements from Harare. He too, had to do accounting duties with no training or supervision. It would appear to me that the fact that exhibit 4 had numerous gaps in it – like absence of signatures, too many cancelled entries, spoke to dereliction of duty on the part of the Provincial Registrar who ought to have been supervising and managing this office. There is no doubt in my mind that if there was basic supervision or routine checking of exhibit 4 and other related exhibits the disappearance of the ETDs could have been detected in time and corrective measures taken.

I am more than satisfied that the appellant and her co-accused ought not to have been convicted in this case. There was simply no evidence to support the conviction.

Having made this finding it is not necessary to consider sentence.

It is ordered that:

1. 	The appeal be and is hereby upheld.

2.	The judgment of the court a quo is set aside and substituted by the following order: -

“The accused is found not guilty and acquitted”

Tagu J      agrees                                          ----------------------------------

Dzimba Jaravaza & Associates, appellant’s legal practitioner’s.

National Prosecuting Authority, respondent’s legal practitioner’s