Wellington Chitehwe AND Tichaona Jonah Chinyani AND Anyway Marikeza AND Edmore Magaso AND Ronald Matsambira Versus THE State

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WELLINGTON CHITEHWE
and
TICHAONA JONAH CHINYANI
and
ANYWAY MARIKEZA
and
EDMORE MAGASO
and
RONALD MATSAMBIRA
versus
THE STATE


HIGH COURT OF ZIMBABWE
HLATSHWAYO AND MUSAKWA JJ
HARARE, 8, 10 MARCH AND 8 NOVEMBER 2011


Criminal Appeal



G. C. Manyurureni, for appellants
A. Masamha, for respondent


       MUSAKWA J: The appellants were convicted of contravening ss 89, 113 and 140 of the
Criminal Law (Codification and Reform) Act [Cap 9:23]. Each appellant was sentenced to a
total of forty four months imprisonment of which twelve months were suspended on condition
that they paid restitution to the complainant. This is an appeal against both conviction and
sentence.

       The evidence led by the state was to the effect that on 15 September 2008 at around 11
p.m the complainant woke up to sounds of his motor vehicle being damaged. Windows to the
house were also being broken. His child and wife were struck by some of the stones that were
thrown.

       The complainant took the first child to the bathroom for safety. On his way from the
bathroom he noticed that the French door had been destroyed. As he took the wife and another
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child to the bath room he saw the second appellant enter the house. The first and third appellants
also came in. The asbestos roofing sheets were broken. The fourth appellant carried away the
television set. As the complainant grappled with the fourth appellant, he was struck by the
second appellant. The third appellant then took a radio whilst the complainant struggled with the
second appellant.

       The stolen property was loaded into a Nissan Hard Body motor vehicle with inscriptions
‘ZANU PF’. As the witness continued to grapple with the second appellant, the first and third
appellants returned whereupon the first appellant told the rest of the appellants to stop whatever
they were doing. The complainant followed the appellants outside and noted that the fifth
appellant was the driver. The motor vehicle initially failed to start. When he was about to reach
it, it started and the appellants went away.

       It was not disputed by the appellants that they were known to the complainant. However,
their defence was an alibi. They all claimed to have been at a funeral on the day in question and
called witnesses to confirm that defence. Nonetheless that defence and the evidence of defence
witnesses was dismissed by the trial court.

       Appellants’ grounds of appeal against conviction are that the trial court erred in relying
on the contradictory testimonies of the complainant and his wife. The other ground of appeal is
that the appellants’ defence of alibi was not shown to be false. As regards sentence, it is
contended that it is manifestly excessive.

       Despite the defence of alibi it was not disputed that the appellants were known to the
complainant. In addition the scene was illuminated by interior and exterior lights. The fifth
appellant did not dispute that he drives a ZANU P.F. vehicle. On the day in question the
appellants were said to have used a vehicle with a ZANU P.F logo. Apart from the fact that the
attack took about thirty minutes, there was lighting inside the house and outside. In addition
there was a tower light in the vicinity. The appellants could not proffer a motive why the
complainant picked on them other than that they belong to different political parties. From the
evidence available this can not be a cogent explanation why the complainant incriminated them.
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       On the issue of identification I refer to the case of S v Dhliwayo & Another 1985 (2) ZLR
101 (SC) in which DUMBUTSHENA CJ made the following remarks-

       “In support of his contention Mr Fitches cited a passage from S v Mthetwa 1972 (3) SA
       766 (AD) at 768A - C where HOLMES JA said:

       Because of the fallibility of human observation, evidence of identification is approached
       by the courts with some caution. It is not enough for the identifying witness to be honest:
       the reliability of his observation must also be tested. This depends on various factors,
       such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for
       observation, both as to time and situation; the extent of his prior knowledge of the
       accused; the accused's face, voice, build, gait, and dress; the result of identification
       parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not
       exhaustive. These factors, or such of them as are applicable in a particular case, are not
       individually decisive, but must be weighed one against the other, in the light of the
       totality of the evidence, and the probabilities; see cases such as R v Masemang, 1950 (2)
       SA 488 (AD); R v Dladla & Ors 1962 (1) SA 307 (AD) at p 310; S v Mehlape 1963 (2)
       SA 29 (AD).”
       I am of the respectful view that the appellants were sufficiently identified by the
complainant. The absence of ill-motive on the complainant’s part is evidenced by his lack of
incriminating evidence against the first accused who was acquitted after he was exonerated.

       On sentence it is trite that an appellate court can only interfere with a sentence where it is
manifestly excessive or where it is tainted with some irregularity. This is one case where the trial
court should have imposed a globular sentence because of the interconnectedness of the offences.
It is self-evident that the offences constituted one continuous transaction as there was no break in
their commission. CHINHENGO J had occasion to deal with a similar issue in S v Chayisva
2004 (1) ZLR 80 (H) and at p 83 had this to say-

       “……BEADLE J carried through with this reasoning when he became Chief Justice. In R
       v Makaza & Others 1969 (1) RLR 97 (G), he specifically recommended to magistrates to
       treat many counts as one for the purpose of sentence in cases in which the several counts
       arise out of the same transaction. Judicial approval was also given to this approach in S v
       Zacharia 2002 (1) ZLR 48 (H).
       In deciding to pass a globular sentence, therefore, a judicial officer must be guided by the

following factors, which are not exhaustively stated:
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   (a) The offences are the same or of a similar nature; and

   (b) The offences are closely linked in time; or

   (c) The offences arise out of the same transaction”

       In the present case the dominant intention of the appellants was to perpetrate violence.
The offence of public violence could have been preferred by the prosecutor in place of the
charges of malicious damage to property and assault.

       Having made these observations it seems the trial court erred in the manner in which it
assessed the sentence although there is no doubt about the seriousness of the offences. The trial
court, apart from passing separate sentences proceeded to order that they run consecutively. The
resultant cumulative sentence, in my view was excessive. This is particularly so if one takes into
account that no medical report was produced in respect of the charge of assault. Although the
court ordered restitution there was a disparity in respect of the value of the damaged property and
stolen goods as stated in the outline of state case and what the complainant gave in evidence. In
any event the trial court ordered restitution where the value in respect of the damage caused was
not readily quantifiable or not proven with any certainty.

   In the result it is ordered as follows-

   (a) The appeal against conviction is hereby dismissed.

   (b) The sentence imposed by the trial court is set aside and in its place is substituted the
       following:
   “Thirty months imprisonment of which six months imprisonment is suspended for five years
   on condition during that period accused is not convicted of any offence involving a
   contravention of s 36 of the Criminal Law (Codification and Reform) Act for which he is
   sentenced to imprisonment without the option of a fine.”




HLATSHWAYO J agrees………………
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Manyurureni & Company, appellants’ legal practitioners
Attorney-General’s Office, respondent’s legal practitioners