Tapiwa Mandima v The State

### Preamble
1
HH 192-21
B 566/21
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TAPIWA MANDIMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 23, 25, 26 March & 22 April 2021

Application For Bail Pending Appeal

A. Rubaya, for applicant

F. Kachidza, for respondent

MUSAKWA J: The applicant was convicted of two counts of stock theft and one count of extortion. He was sentenced to 9 years’ imprisonment in respect of each count of stock theft. In respect of the charge of extortion he was sentenced to 36 months’ imprisonment of which 6 months were suspended for 5 years on condition of good behaviour. A further 6 months were suspended on condition of restituting $200 to Bekithemba Ndlovu on or before 28 February 2019. Appeal against conviction and sentence was noted in December 2018. The applicant now seeks bail pending determination of the appeal.

The applicant was jointly charged with Promise Chifodya who for convenience will be referred to as the first accused. The applicant and the first accused were Police Officers based at Fort Rixon Police Station. At the material time the applicant was deployed at PBS Police Base.

The record of proceedings clearly shows that the applicant never pleaded to the charge of extortion. Nonetheless he was convicted and sentenced for that charge. The state readily concedes that the trial court erred in convicting and sentencing the applicant for that charge. It remains a mystery how such a gaffe occurred. This is because the record of proceedings does not reflect that charge being put to the applicant and the trial court asking him to plead to it. This is despite that charge reflecting on the charge sheet. It follows that there is prospect of success in respect of the appeal against that charge.

Notwithstanding the error by the trial court, this does not dispose of the matter. The two counts of theft read as follows:

“Count One

Charged With The Offence Of Stock Theft As Defined In Section 114 (2) (a) Of The Criminal Law (Codification And Reform) Act [Chapter 9:23]

In that on a date to the prosecutor unknown but during the month of March 2018 and at village 6, PBS Area, Fort Rixon both Promise Chifodya and Tapiwa Mandima or one or more of them well knowing that the State was entitled to own, possess or control one stray stock through Mahoni Nyanilisiwe Mtambo or realising that there was a real risk or possibility that another person was entitled to own, possess or control the said cattle (sic) unlawfully and with intent thereby to permanently deprive the said Mahoni Nyanilisiwe Mtambo of such ownership, possession or control took the said ox.

Count Two

Charged With The Offence Of Stock Theft As Defined In Section 114 (2) (a) Of The Criminal Law (Codification And Reform) Act [Chapter 9:23]

In that on a date to the prosecutor unknown but during the month of March 2018 and at village 6, PBS Area, Fort Rixon both Promise Chifodya and Tapiwa Mandima or one or more of them unlawfully took an ox knowing that Mahoni Nyanilisiwe Mtambo was entitled to own, possess or control the said ox, intending to permanently deprive the said Mahoni Nyanilisiwe Mtambo of such ownership, possession or control took the said ox or realising that there was a real risk or possibility that Mahoni Nyanilisiwe Mtambo may be so deprived permanently of his ownership, possibility (sic) or control of the ox.”

The evidence in the matter was not led in a systematic manner that is easy to follow in some respects. For example, some aspects of evidence were never canvassed with witnesses or clarified. Nonetheless it will be summarised as follows:

Mahone Nyaniliswe Mtambo of Fort Rixon had amongst his herd of cattle a stray brown steer and a cow. It was not stated when the brown steer mixed with his herd but the cow came in 2015. The cow came with a calf and subsequently gave birth to another calf. Fort Rixon Police Recovered Property Register recorded the stray cattle under entry 20/17. The witness was not asked when and to whom he reported the presence of stray cattle on his farm.

On an unspecified date the applicant and the first accused approached Mahone Nyaniliswe Mtambo and informed him the Rural District Council for the area was no longer responsible for the management and disposal of stray stock. They then subsequently sold the stray brown steer to Tracey Dube. When Mahone Nyaniliswe Mtambo enquired how he would account for the disposal, the applicant and the first accused furnished him with an affidavit. The affidavit and other exhibits produced during the trial are not part of the record before me.

As regards the second count, according to Mahone Nyaniliswe Mtambo as the stray cow was nursing a calf the applicant and the first accused reasoned that the calf would struggle if they disposed of its mother. They then proposed (if not dictated) a swap with his black steer which was also sold to Tracey Dube for US$200. The money was handed to the first accused in the presence of the applicant. In effecting the swap Mahone Nyaniliswe Mtambo was told that he would keep the cow and its offspring in place of the black steer. The stray brown cow subsequently went missing.

On an unspecified date the applicant went to see Mahone Nyaniliswe Mtambo in the company of someone who was said to be Paulos Dhlamini. They had an affidavit that was to be attested. It is not clear but it appears Mahone Nyaniliswe Mtambo is a commissioner of oaths. The capacity in which he is empowered to administer oaths was not specifically canvassed but it appears that he is an ex-Police officer. This is because he referred to the applicant and first accused as former work mates. Mahone Nyaniliswe Mtambo asked for Paulos Dhlamini’s identity card but he was informed that it was unavailable. The applicant then made representations which persuaded Mahone Nyaniliswe Mtambo to sign the affidavit. However the deponent to the affidavit did not sign it in his presence.

Under cross-examination Mahone Nyaniliswe Mtambo stated that the cattle were taken by Paulos Dhlamini. However, upon being re-examined he stated that he did not know if the cattle were taken by Paulos Dhlamini. Apparently he had a cousin by the name Paulos Dhlamini who had died at some unspecified time before the commission of the offences.

The investigating officer in the matter made checks for Paulos Dhlamini in Mbete Village, Mbemebsi and could not find such a person. Checks with Gwanda Registry Office also drew a blank.

Tracy Dube who operates a butchery was approached by the applicant and the first accused concerning some cattle that were available for sale. The applicant and the first accused provided transport to Tracey Dube and they went to village 6. Negotiations took place in the presence of Mahoni Nyanilisiwe Mtambo. Initially the asking price for the brown steer was US$400 but Tracey Dube successfully bargained for US$350 which she handed to the applicant in the presence of the first accused and Mahone Nyaniliswe Mtambo.

Tracey Dube was not immediately furnished with the relevant stock clearance form for the brown steer. Subsequently, upon being furnished with the stock clearance form Tracey Dube was offered a black steer. She paid US$200 which she handed to the first accused in the presence of the applicant. She never got the clearance form for the steer.

The applicant’s defence was that Paulos Dhlamini and Mahone Nyamisile Mtambo made representations to them that the stray cattle belonged to Paulos Dhlamini. The applicant and the first accused verified with Constable Mushinako who had access to the Found Property Book. It was established that the cattle were recorded as entry number 20/17. Paulos Dhlamini was then referred to the Police Station for purposes of attestation of an affidavit. The applicant and  the first accused then processed the handover  of the stray animal. In respect of the second count, the complainant was under investigation for theft of stray stock. This is because he claimed stray cattle on behalf of someone who was said to be in South Africa.

Submissions Made

Mr Rubaya submitted that where an applicant has a fighting chance of succeeding on appeal, bail pending appeal should be granted. He made reference to S v Chikumba HH-724-15 and S v Gumbura SC 78-14.

Regarding the first count, he submitted that the charge is defective for alleging that the stray stock belonged to the state. He placed reliance on the case of S v Machokoto 1996 (2) ZLR 190.

In respect of the second count, Mr Rubaya submitted that the wrong charge was preferred against the applicant. This is because the taking of the steer was not unlawful as it was done with the consent of the owner although there was misrepresentation. As such, the appropriate charge is fraud. He further submitted that the verdict cannot be amended to reflect guilty of fraud as fraud is not a permissible verdict to theft.

Ms Kachidza submitted that the facts in S v Machokoto supra are distinguishable from the present matter. She was adamant that it was proper for the charge to allege theft of stock belonging to the state. In addition, she also submitted that there was no objection to the first count.

Regarding the second count, Ms Kachidza submitted that it is clear that the applicant stole the complainant’s stock through misrepresentation. She further submitted without fully developing the argument, that the applicant’s conduct amounts to what used to be termed theft by conversion. She also further submitted that the applicant’s appeal was previously dismissed for failure to file heads of argument within the prescribed period. This suggests that the appeal is ready for hearing and as such the applicant should focus on prosecuting his appeal.

Analysis

Bail pending appeal is predicated on prospects of success. The law is well established and needs no repetition.

A reading of the record of proceedings shows some shortcomings regarding the canvassing of evidence regarding compliance with provisions of the Stock Trespass Act [Chapter 19:14]. Nonetheless some of the aspects of the Act are implicit in the evidence that was led.

It is noted in passing that the maintenance of pounds for the retention of trespassing stock may be seriously compromised. If pounds are still being maintained by local authorities, it is unlikely that the applicant and first accused could have taken advantage of that deficit. This is because the cattle that were the subject of the charges in the present matter would have been kept in a pound.

The responsibility of caring for trespassing stock appears to have been relegated to owners of land where such stock strays. This is notwithstanding that any stock that trespasses on land in an urban area or on any land outside an urban area is supposed to be sent to the nearest pound. This is in accordance with s 16 of the Stock Trespass Act. In terms of s 17 an owner of land is obliged to inform the owner of stray stock or the pound master of the nearest pound of the presence of stock on his land. This is because trespassing stock is not allowed to remain on a person’s land for more than a week unless its owner or the nearest pound master has been informed. That is why failure to inform an owner of trespassing stock (if known) or the nearest pound master of the presence of trespassing stock on one’s land is a punishable offence in terms of s 17 (6).

In terms of s 43 of the Stock Trespass Act any unclaimed trespassing stock is disposed of by sale. Therefore representations made by the applicant to Mahone Nyaniliswe Mtambo that local authorities were no longer responsible for trespassing stock may not be in accordance with provisions of the Stock Trespass Act. There has been no amendment to the Act to shift that responsibility to any other entity.

Mr Rubaya’s reliance on the authority of S v Machokoto supra is misplaced. In that case the accused had appropriated a cow and its calf by exchanging them for some oxen. The cow had strayed onto their homestead when the accused was sixteen years old and the accused’s father had kept it for seven years without reporting it until he passed on. The accused pleaded guilty to the charge. In upsetting the conviction chinhengo j reasoned that the ten years that had lapsed since the cow trespassed was a sufficient period to reach a conclusion that the cow’s owner had written it off. The stray stock had become res derelicta and the accused could not be said to have harboured an intention to steal in the circumstances. It may also be noted that the accused was never acquitted on the basis that the charge was defective by alleging theft of stock belonging to the state, as Mr Rubaya sought to submit.

Therefore it is abundantly clear that the applicant had no authority to dispose of the steer in the first count. The applicant should have involved the relevant local authority.

As regards the second count, notwithstanding that the applicant misrepresented to the complainant, essentially his conduct amounts to theft. This is because the applicant and the first accused treated the stray cow and its progeny as their property by exchanging them for a steer belonging to the complainant which they then sold. They had no authority to appropriate the two cattle in such a manner as their disposal was not in terms of s 43 of the Stock Trespass Act.

I agree with Ms Kachidza that the applicant and first accused never objected to the charges as being defective when they pleaded. In any event, as long as no prejudice is occasioned, a defective charge can be amended at any stage, even on appeal.

Therefore, notwithstanding the conviction of the applicant on the third count to which he did not plead, he enjoys no prospects of success in the appeal against the other two counts. The other consideration is that the appeal is ready for hearing and it is not clear why the applicant is not seeking that it be set down. There is no question of any administrative delay in the hearing of the appeal. It must be appreciated that the backlog on appeals has of late been countered by the mobilisation of judges who ordinarily do not preside over appeals as happened during the last two weeks of the first term of 2021. During that exercise 110 criminal appeals were set down and of those matters, 82 were disposed of.

Where an appeal enjoys no prospects of success, it follows that the likelihood of abscondment is high. As was held in Gumbura v The State supra prospects of lengthy incarceration coupled with a spell of post-trial incarceration can offer an incentive to abscond.

In the result, the application is hereby dismissed.

Rubaya and Chatambudza, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners