Admire Mukuvadze and Delight Choga v The State

### Preamble
1
HB 98/25
HCBCR5199/24
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ADMIRE MUKUVADZE

and

DELIGHT CHOGA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUTEVEDZI AND NDLOVU JJ

BULAWAYO, 29 May 2025 and 9 June 2025

Criminal Appeal

M. Ndlovu for 1st Appellant

T. Tsakaendesa  for 2nd Appellant

T. C. Mujokoro for Respondent

MUTEVEDZI J: 	This is an appeal against both the conviction and the sentence delivered by the Court of the Magistrates’ Court sitting in Gwanda on 28 October 2021.

Background

Admire Makuvadze (first appellant), Delight Choga (second appellant) and one Joseph Phiri (Joseph) were arrested and subsequently charged with robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the CODE). They appeared before the court of a Regional Magistrate at Gwanda. The allegations were that on 12 February 2012, at New Eclipse Mine, Shangani, the two appellants and their accomplices used violence against the complainant and took 100 kilograms of gold carbons belonging to the complainant. They were both convicted after a contested trial. Each of them was sentenced to 10 years imprisonment, of which 5 years imprisonment was suspended for 5 years on condition of their good behaviour.

The background to the charges was that the appellants, Joseph, who was also convicted of the robbery, Curthbert Gumani (Cuthbert), who is now deceased, Handsome Moyo and Simbarashe Mhlanga, who are still at large, planned to rob gold carbons at New Eclipse Mine in Shangani. The complainant got wind of the robbers’ plan. He informed the police, particularly the CID MFFU at Gwanda. The police quickly acted. They laid an ambush and waited for the robbers to pounce. The gangsters walked straight into that hornets’ nest.

The prosecution alleged that on 12 March 2021, at around 0100, the appellants and their accomplices, as per their plan, went to the mine in a black Mercedes-Benz E-Class Reg. No. AEI 8104. They parked the car some distance from the mine.  The appellants’ three accomplices disembarked and proceeded to the carbon room.  The appellants and Joseph stood guard outside. Their accomplices then loaded 100 kg of carbon into sacks and removed them from the carbon room. At that point, the detectives, the complainant and other mine workers closed in on the hoodlums. The appellants managed to flee to their getaway vehicle whilst Joseph, Cuthbert and the other two accomplices who were not arrested attacked the State witnesses. During that attack, Cuthbert was alleged to have struck the complainant three times on the head with a machete. The complainant, who was armed with a Winchester Rifle, shot Cuthbert in the right thigh, resulting in him and Joseph being arrested. The other two, Handsome Ndlovu and Simbarashe Mhlanga, managed to escape. The police and the complainant later caught the appellants as they were about to flee in their vehicle. They were both searched. The police found on the person of the first appellant a Star pistol with serial number 1527656. It had a magazine with seven rounds.

At their trial, both appellants denied the charges. They also denied ever entering the premises of New Eclipse Mine or using violence against the complainant. They told the court a quo that Cuthbert hired the first appellant to ferry him and others to the said mine where Cuthbert and his colleagues used to work. Cuthbert had told the first appellant that he and his colleagues had been called back to work. The first appellant then asked the second appellant to accompany him, as they were planning to travel at night and he would need someone to drive back with. The appellants further told the court aquo that they had dropped Cuthbert and his colleagues at the shops where they remained parked until they saw the police and a security guard knocking on the windows of their vehicle. They were instructed to disembark, and they had complied. The search, which we mentioned earlier, was conducted. It resulted in the recovery of the gun, which the first appellant admitted belonged to him.  He argued that he was licensed to possess the firearm and that he had carried it because he did not completely trust the people that he was ferrying to Shangani from Kwekwe.

Proceedings before the court a quo

During the trial, the State presented evidence from four witnesses: Last Ndlovu, Bitone Ncube, Darlington Mugariwa, and Kim Cheukide. Below, we restate the critical aspects of the witnesses’ evidence as it appeared in the record of proceedings.

Last Ndlovu (Last)

He was an employee at the mine.  He said that on 6 March 2021, he was called by Cuthbert on his cellphone. Cuthbert advised him that they wanted to steal gold carbons from his (Last's) workplace. Cuthbert had then sent him RTGS$200 on ecocash for transport to Kwekwe. He proceeded to Kwekwe on 7 March 2021 and met the two appellants, along with four other men, in front of the post office in that town. The six told him in detail that they wanted to steal gold carbons from his workplace on March 11, 2022. Last played along.  He said the conspirators gave him US$50 to buy his cooperation. Upon further investigation, Last stated that the second appellant was the one who specifically detailed the plan to him. After the meeting, he returned to the mine and informed the complainant of the intended robbery.

On 11 March 2021, he reported for duty at the mine at 6 pm. The appellants and their colleagues later called to inform him that the plan was on and that they were on their way. The gang arrived at the mine on foot around midnight. They were armed with various weapons, which included machetes and two pistols. He said that when he shone his torch on the gangsters, they instructed him to switch it off. They then took him and his colleague to the carbon room. There, Joseph used a crowbar to break the locks. Joseph, Handsome Moyo, and Simbarashe Mhlanga entered the carbon room and loaded the carbons into 90-kg sacks, which they had brought. They took the carbons outside. It was at that stage that the complainant arrived at the ambush site. Observing that they had been waylaid, Cuthbert approached the complainant and hit him with a machete three times on the head. The complainant fought back and shot Cuthbert.  Joseph was also apprehended. The others fled. The police gave chase using the complainant’s vehicle. They later apprehended the appellants.

Last was cross-examined extensively, but he denied that the three assailants, Simbarashe Mhlanga, Handsome Moyo and Cuthbert had come to the mine because they had been recalled for work. He was adamant that Cuthbert was shot at the cyanidation plant, committing the robbery. He admitted that in the statement he gave to the police, he had stated that only two people, Handsome and Cuthbert, entered the carbon room. He further said the complainant shot Cuthbert at the time they were fighting, and Cuthbert had struck the complainant with a machete on the forehead. He disputed that Cuthbert died of a stab wound but of a gunshot. He was asked when he first met the appellants, and he said it was when he travelled to Kwekwe, although he learnt of their names after the arrest. He further explained that when the appellants and their accomplices arrived at the cyanidation plant, they had emerged from the bushes on foot and jumped over the fence. He stated that the police officers had laid their ambush at a place in a different direction from the one used by the robbers. The police had only joined in after hearing the gunshots.

Bitone Ncube (Bitone)

He is the complainant and proprietor of New Eclipse Mine. He confirmed that on 6 March 2021, Last had told him about the planned robbery. He had repeated the same story on 7 March 2021. On 11 March 2021in the morning, Last had again reminded him that it was the day of the intended attack. Armed with the information, he had reported the plan to the Police, who reluctantly laid an ambush at the mine on the evening of 11 March. The police set up their ambush some distance from the carbon room, while the complainant settled at a location nearer to the carbon room, where he could hear the slightest noises from within. He said that around midnight, he heard noise from the carbon room. It sounded as if someone was trying to damage the door. He proceeded to the carbon room, but a person suddenly emerged from a nearby half wall and hit him on the head. He fought with the person, but he said he was losing power due to the head injury. He retreated and fell into a drainage. He could see the shadow of the person advancing towards him. He aimed his gun and shot the person, who immediately fell. The police arrived and found the person lying on the ground. Bitone said they also saw him injured. Joseph was apprehended in the carbon room by security guards. He said the person with whom he had wrestled and shot was Cuthbert. The witness stated that he had noticed several people in the carbon room when he approached, but most of them had fled before he could identify them. He only managed to recognise Cuthbert. Upon inspecting the carbon room, he noticed two bags of carbon that had been taken out and were lying about three metres from the room. He further said Cuthbert had a weapon tied to his hand. In the morning, he saw many armaments that the police had gathered, although he could not clearly state who among the gangsters was carrying which weapon. In respect of the two appellants, he was candid that he did not see them at the crime scene but that the police had chased a car that had sped off. The police had used his car, and he was a passenger. They had blocked the fleeing vehicle and ordered the appellants to open the doors. The appellants refused and locked the car doors. They later relented and disembarked. Counsel did not spare him the extensive cross-examination, but he stood his ground and maintained his testimony.

Darlington Mugariwa

He was a police officer stationed at CID MFFU Gwanda at the material time. He was part of the team that visited New Eclipse Mine on 11 March 2021, following the report by the complainant. Upon arrival at the mine, he and his two colleagues met the security guards and devised a strategy. The police officers were to lay an ambush at the location where it was suspected the robbers would enter. He said that at around midnight, they noticed a motor vehicle which parked 30 metres away from the mine and six men disembarked and entered the mine. Unfortunately, these six men did not use the suspected entrance but an undesignated point. The men were armed with machetes and something that looked like a pistol. After a while, they heard gunshots and they ran to the carbon room and found that one of the accused persons had been shot in the lower limb. One Joseph was arrested at the crime scene, and they followed the other men who had escaped. They found the car from which the six men had earlier disembarked, with the two appellants inside. The first appellant was driving. When they introduced themselves as police officers, the first appellant had produced a pistol. The police arrested the appellants. They confiscated a gun from the first appellant. It had seven rounds of ammunition.

Kim Cheukide

He was one of the police officers who attended the mine on the night in question.  His evidence was similar to that of his colleague. In addition, he stated that he observed gold carbons that had been dumped at a distance of approximately five metres from the carbon room, and they weighed approximately 100 kg. The carbon room door had been broken. He corroborated the complainant's evidence that, upon blocking the getaway vehicle, the appellants had locked themselves inside and were refusing to open the doors or lower the windows. In the morning, he had noticed a broken key and a crowbar lying near the room.  They recovered four machetes. He confirmed that they had also confiscated from the first appellant a gun with seven live rounds. He said that it was false that the appellants had remained at the shops when their accomplices raided the mine.  The State closed its case after his testimony.

The Appellants case

The three accused persons at the court a quo took the witness stand.

Joseph Phiri

He adopted his defence outline as his evidence in chief.  He said Cuthbert advised him that they had been called for work at a mine in Shangani. They boarded a vehicle from Kwekwe around 8 pm, and it was during that time that they had met the appellants. There were six in the car. Upon arrival at Shangani, they were picked up by a security guard from the complainant’s mine. He said they used a small gate to enter the mine.  Cuthbert proceeded to meet the complainant with the security guard while he remained with Handsome Moyo and Simbarashe Mhlanga. He conceded that he was closer to the carbon room than the housing flats when the firearm discharged. Simbarashe Mhlanga and Handsome Moyo fled for their lives when they heard the gunshot.

Admire Makuvadze (first appellant)

He denied the allegations and adopted his defence outline as his evidence in chief. He stood by his argument that Cuthbert hired him to ferry them to Kwekwe in his vehicle. He was adamant that they did not proceed to the mine but instead remained at the Shangani shops, where police officers and a security guard arrested them. Under cross-examination, he claimed ignorance of the registration plates of the vehicle he was driving on the day in question. He said he had carried his firearm for his protection and that of his car.

Delight Choga (second appellant)

As already mentioned, the second appellant argued that the first appellant asked him to accompany him to Shangani. Under cross-examination, he said he met the other four for the first time when they travelled together from Kwekwe to Shangani.

Findings of the court a quo

The court a quo found that Joseph Phiri, who is not a party to these proceedings, and Cuthbert Gumani, who is now deceased, were at the mine, not for any lawful  purpose but to undertake a criminal enterprise. It also held that the first appellant’s car was the same car which ferried the appellants and their accomplices from Kwekwe to Shangani. The same vehicle had six people who disembarked and entered the mine. It further found that the same car was the one from which the appellants were apprehended. It also held that even if it were to discard the evidence of the police officers regarding the identification of the vehicle, the testimony of Last would still suffice, as he told the court that upon his arrival at Kwekwe, he met six men, including the two appellants. It was the same individuals who were apprehended at or near the crime scene. The court a quo also accepted that the two appellants had stood guard with Joseph as the other three robbers went inside the carbon room and stacked the gold carbons into sacks. It found the evidence of Last entirely credible. In addition, the trial magistrate found that the first appellant’s argument that he had carried a gun because he did not trust the people he was ferrying was implausible. It concluded that the appellants were present at the mine on the date in question. Notably, the court further found that the appellants acted in concert with Joseph, Cuthbert, and the other two accomplices, who are fugitives from justice. In that regard, the trial magistrate said:

“The court thus makes a finding that accused 2 and 3 were present at the mine on the date in question. Having made such a finding, the question which comes to the fore is whether they were acting in common purpose with the accused one who was found in the carbon room and the ones at large, and also the deceased. Section 	196A of the CODE provides for the doctrine of common purpose. What is clear from the section is that the law distinguishes between two species of common purpose, that is, the one in which a prior agreement to commit an offence has been proved and the other in which no prior agreement to commit an offence has been proved. In the matter before the court, the state managed to prove that there was a prior agreement to commit 	the offence.”

For the above reasons, the court a quo found the appellants guilty of robbery and sentenced each of them to the punishments stated earlier.

Proceedings before this Court

Aggrieved by both the conviction and sentence, the appellants approached this Court with an appeal based on grounds couched in the following manner:

“GROUNDS OF APPEAL

The court a quo erred and misdirected itself in convicting the Appellants on the basis of evidence acquired from a trap; without satisfying itself that all the essential requirements of the trap had been adhered to

The court a quo erred and misdirected itself in convicting the two (2) Appellants on the basis of circumstantial evidence, when it was clear that such evidence had no probative value in the circumstances.

The court a quo erred and misdirected itself in convicting the Appellants for the charge of robbery when the State case established a charge of either trespass, unlawful entry and theft or theft and assault

The court a quo erred and misdirected itself by convicting the Appellants for robbery of carbons in light of the following: -

the carbons were not produced as an exhibit.

(ii) no Assayers' report was tendered to establish that the alleged carbons had gold and the content thereof.

The court a quo erred and misdirected itself in Its interpretation of the Covid 19 regulations thereby reaching the conclusion that they had breached the same in furtherance of the criminal offence.

The court a quo erred and misdirected itself in putting reliance upon the evidence of Last Ndlovu without taking consideration of the fact that he was a suspect witness

The court a quo erred and misdirected itself in acting upon the evidence of the State witnesses, which evidence was marred by grave inconsistencies.

The court a quo erred and misdirected itself by convicting the Appellants upon evidence of State witnesses who either were sitting in the courtroom while evidence of other witnesses was being led or were told what to testify by witnesses who had already testified.

The court a quo erred and misdirected itself in misappropriating the doctrine of common purpose despite the fact that such doctrine is no longer applicable in this jurisdiction.”

“GROUNDS OF APPEAL AGAINST SENTENCE

The sentence of ten (10) years, in which two (2) years were suspended on the usual conditions induces a sense of shock in the circumstances, especially regard being had to the following factors: -

The court a quo passed its sentence without the Assayers' report which would assist it in establishing whether the carbons had gold or the value of deprivation.

The court a quo erred in adopting an all-inclusive approach in sentencing the appellants without considering the fact that the Appellants did not actively aid or take part in the commission of the offence.

The court a quo erred by sentencing the appellants on the basis of a medical report which was inconsistent with the injuries suffered by the complainant.”

RELIEF SOUGHT

The appeal against conviction succeeds.

The Judgment of the court a quo is set aside and substituted with the following:

"The 2nd and 3rd Accused persons are found not guilty of Robbery as provided for in Section 126 of the Criminal Law (Codification and Reform) Act Chapter 9:23 and acquitted"

“RELIEF SOUGHT

The appeal against sentence be and is hereby allowed.

The judgment of the court a quo in respect of sentence is set aside and in its place and stead be substituted with the following:

"Each of the Appellants is sentenced to two (2) years imprisonment, of which one (1) year is suspended for five (5) years on condition that none of them should commit a similar offence.”

Issues for determination.

The appellants raised nine grounds of appeal. Most of them are repetitive and speak to the same grievance. For instance, grounds of appeal 1, 2, 3, and 4 all allege that the state did not prove one or more of the essential elements of the crime of robbery. In the end, we discern the critical issues to be as follows:

Whether or not the court a quo erred in convicting the appellants when the state had not proved the essential elements of robbery.

Whether or not the court a quo convicted the appellants based on evidence of a trap.

Whether or not the witness, Last Ndlovu, was an accomplice witness.

Whether or not the court a quo applied the doctrine of common purpose when it was no longer applicable in this jurisdiction.

Whether or not the court a quo erred by relying on the evidence of State witnesses.

Whether the sentence imposed by the court a quo induces a sense of shock.

Common cause issues

From our reading of the record of the proceedings, the grounds of appeal, and oral submissions made at the hearing, several issues appeared to us to be common cause or were not seriously disputed. These were:

The first appellant was the owner or, at least, the driver of the vehicle impounded near the crime scene on the day in question.

The six men, who included the appellants, had travelled together from Kwekwe to Shangani. They had left Kwekwe around 2000 hours.

The two appellants were arrested in the vicinity of the crime scene

Below, we address the issues not necessarily in the order stated above.

Whether or not the court a quo convicted the appellants on the evidence of a trap

The appellants argued that the court a quo accepted evidence that resulted from a trap, in circumstances where the trap did not meet the requirements prescribed by law.

This court in the case of Makanzwei Jecheche v The State HH781/15 quoted with approval the definition of a trap advanced by authors Gardner & Lansdom, South African Criminal Law & Procedure Vol 1, 6th Edition, page 659, where they described a “trap” as where:

“A person who, with a view of securing a conviction of another, proposes certain criminal conduct to him, and ostensibly takes part therein.  In other words, he created the occasion for someone else to commit the offence.”

I understand that a trap, therefore, refers to instances where the police or some other law enforcement agency are complicit in the commission of an offence or encourage and facilitate the commission of a crime to gather evidence, enabling the arrest and successful prosecution of an individual. It is anchored on the police or someone acting on their behalf, feigning participation in the crime and nudging the individual to commit the crime. It courts controversy in that it is a policing method that is usually viewed as persuading an otherwise law-abiding citizen to commit a crime. Where there is a trap, the witnesses typically qualify as trap witnesses. Once that conclusion is accepted, their testimonies are regarded as tainted and ought to be treated with caution because of the motivation that their trap must be seen to have succeeded. As held in Jecheche (supra), for that reason, the ‘temptation to embellish evidence’ becomes heightened.

What cannot be debated from the above is that for there to be a trap, the criminal conduct must have been either proposed to the accused person by someone whose motive was to secure his/her conviction or where after a criminal enterprise is mooted, someone else participates in the planning and execution of the crime intending to have the offender convicted. In other words, the offender must be a “victim” of the machinations of the one trapping him.

It must be apparent from the above discussion that what happened in this case does not constitute a trap. The appellants and their accomplices planned the commission of the crime. They decided to rope in the witness, Last Ndlovu, who they knew was a security guard at the mine. He turned against them and advised the mine owner almost immediately after leaving the robbers. He did not participate in the conspirators’ plans. He did not participate in the execution of their plan. It cannot be said by any stretch of imagination that Last proposed the criminal enterprise to the gangsters. It cannot equally be accepted that he created the occasion for them to commit the crime. As such, the argument must end there. There was no trap in this case. On their part, the police were far removed from the discussions before the commission of the robbery. They do not fit into the trap discussion. All they did was become aware of an impending robbery and, per their duties, sought to protect the intended victim.

Whether the court a quo misapplied the doctrine of common purpose

The argument under this ground of appeal was that the court a quo convicted the appellants based on the common purpose doctrine, a legal concept that is now moribund. In other words, it was argued that the doctrine is no longer applicable in this jurisdiction.

The doctrine of common purpose is a principle of law which presupposes that the participation of two or more persons in a criminal enterprise where the two or more persons come together with a common objective to commit a crime and one of them indeed goes on to commit the crime, every act done by one of them in furtherance of that common intent is deemed to be the act of them all. The principle, therefore, deals with the co-perpetrators of a crime. That doctrine was a common law principle which was arguably repealed when Parliament enacted the CODE. In Madzokere and Others v The State SC 71/21, the Supreme Court traced the death and possible resurrection of that doctrine. In the end, it held at p. 11 of the cyclostyled judgment that:

“When the Code was enacted, it provided in s 196 for the liability of co-perpetrators who associate with each other with the intention that each or any of them shall commit any crime. Broadly, this provision re-enacted the essence of the common law doctrine of common purpose.” (Bold is my emphasis.)

In Madzokere, the Supreme Court further held that the direct application of the common law doctrine of common purpose had been ousted by the enactment of s 196 of the CODE. That s 196 was later modified, and the liability of co-perpetrators came to be regulated by a new s 196A in the CODE. What is essential to note, however, is that, save for a few differences, all the intricacies of the doctrine of common purpose are still embodied in s 196A, which provides as follows:

“196A Liability of co-perpetrators

If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they—

were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or

were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or

engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.

A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.”

In dealing with the liability of the appellants and their accomplices in this case, the court a quo held that both appellants had been present at the crime scene. It stated as follows:

“Having made such a finding, the question which comes to the fore is whether they were acting in common purpose with the accused one who was found in the carbon room and the ones at large, and also the deceased. Section 196A of the CODE provides for the doctrine of common purpose. What is clear from the section is that the law distinguishes between two species of common purpose, that is, the one in which a prior agreement to commit an offence has been proved and the other in which no prior agreement to commit an offence has been proved. In the matter before the court, the state managed to prove that there was a prior agreement to commit the offence.” (Bolding is my emphasis.)

Admittedly, and as betrayed by the above extract from her judgment, the trial magistrate used the term liability of co-perpetrators interchangeably with the doctrine of common purpose. If the holding of the Supreme Court in Madzokere is relied on, the doctrine of common purpose ceased to be applicable in its common law formulation at the time that the CODE came into being. What cannot be doubted, however, is that when she referred to common purpose, the trial magistrate’s sight was squarely fixed on s 196A of the CODE. I hold so because, other than expressly stating so, the principles which she discusses in her judgment were not part of the doctrine of common purpose at common law. Instead, they are entirely part of subsection (2) of s 196A. She imputed common purpose on the appellants because they had “associated together in conduct that was preparatory to the conduct which resulted in the crime for which they were charged.” That, in our view, puts it beyond doubt that the court a quo did not apply common purpose as it existed before the advent of the CODE. It is therefore erroneous to seek to impugn the court a quo’s decision on the argument that it applied a moribund principle of law. Referring to s196A and christening it as common purpose does not change anything as long as it remains clear that the principles being applied are the ones derived from the statute, because it is a fact that after the enactment of the CODE, the principles of common purpose essentially mutated into s196A. The courts have not ceased using the phrase "common purpose" when discussing the liability of co-perpetrators. For that reason, the court a quo rightly held that it found a shared intention among the appellants and their accomplices to commit the robbery. Their association dated back to the time they met in Kwekwe in the presence of Last Ndlovu to plan the robbery. In addition, the appellants were apprehended in the vicinity of the crime scene in conformity with subsection (2) (a) of s 196A. They were attempting to flee. The circumstances under which they were arrested there directly implicated them in the commission of the robbery. The court a quo correctly held that the appellants were among the six men seen disembarking from the vehicle and entering the mine through an undesignated point. They had driven in the same car from Kwekwe to Shangani. Once the above sequence of events was established, there couldn’t have been any denying that the two appellants acted in collaboration with their accomplices. They, therefore, worked in the fulfilment of their common design. That they were not arrested in or near the gold carbons room is of no moment. Needless to state, the ground of appeal cannot be sustained. It is therefore dismissed.

The sufficiency of evidence to prove robbery and the use of the so-called circumstantial evidence

The essential elements of robbery are clear from s 126(1)(a) of the CODE which provides that any person who steals shall be guilty of theft if he or she intentionally uses violence or threats of violence immediately before or at the time he or she takes the property, to induce the person who has lawful control of the property to relinquish it or immediately after he/she has taken the property, to prevent the person who had lawful control of it from recovering his or her control over the property. The elements are self-explanatory and are not in dispute in this appeal.

As already stated, we combined several grounds that made the same point into one. The evidence presented to the court a quo was, in many ways, very direct. Last Ndlovu, the key witness in the case, told the trial court that he met the two appellants in Kwekwe on the day that Cuthbert invited him to plot the robbery. He stated that the first appellant was the one who relayed the plan for the robbery to him.  The second appellant was present during the discussion. It was that evidence which the court relied on to convict both appellants. If any corroboration of that evidence was required, it was provided by the presence of the appellants at the crime scene.  The court a quo correctly relied on this direct evidence, which links the two appellants to the commission of the offence. The discussions in Kwekwe put paid to any suggestion that the appellants had advanced, namely that they had been hired to ferry the other men, who claimed they had been called for work at the mine. There is little, if any, argument that the appellants’ accomplices had gone to the mine for a robbery. The conclusions that the court drew from the numerous issues surrounding the robbery are equally damaging to the appellants’ cause. The court a quo said it was taken aback by the claim that the appellants had gone for employment when all of them had arrived at the mine at midnight. They did not carry any personal belongings that indicated they were ready to take up employment. In addition, the court aquo found as a fact that the mine was a well-established one where workers would not need to bring their personal tools.  Yet, the appellants and their colleagues were found with implements which they used for the robbery. They were seen storming the carbon room, ransacking it and emerging with sacks containing the gold carbons. To us, there is nothing circumstantial about that kind of evidence. It is direct evidence. That the appellants or their colleagues were convicted based on circumstantial evidence is, therefore, simply a creation of the appellants. As discussed above, evidence of common purpose is distinct from circumstantial evidence. It was shown that both appellants had full knowledge of the robbery. In reality, the first appellant could have just as well been the mastermind of it if reliance is placed on the discussions that took place in Kwekwe.

Equally critical is that the court found Last and the other witnesses to be credible, conclusions which we find to be irreproachable. They are the province of the trial court. In Nickolas Van Hoogstraten V Tapiwa Nelomwe SC 4/20 at p. 7 of the cyclostyled decision, the Supreme Court held that:

“It has long been regarded as settled in this jurisdiction that this Court will not interfere with factual findings, including findings on the credibility of witnesses, made by a trial court unless the decision is irrational.”

The same principle had been followed earlier in the case of ZNWA v Mwoyounotsva 2015 (1) ZLR 935 (5) at 940 R-F, where it was held that:

“It is settled that the appellate court will not interfere with factual findings made by a lower court unless these findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusions; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it; or that the decision was clearly wrong.” See also the case of S v Van Aardt 1975 (2) SA 372 (RA).

The evidence found to be credible by the court a quo cannot be faulted. Last told his employer about the planned robbery. Although there were slight inconsistencies between his evidence and that of the complainant as to when he first told the complainant about the planned robbery, such discrepancies were immaterial. They did not affect the overall efficacy of the state’s evidence. The probative value of the prosecution’s evidence far outweighed the completely improbable versions advanced by the appellants that they were just couriers in the whole transaction. The appellants were found in possession of a gun. The explanation regarding why the first appellant was carrying the weapon was just a red herring. Although it was licensed, the licence did not permit him to take it from Kwekwe to Shangani because he could only use it within circumscribed conditions. Even after hearing and possibly witnessing gunfire on the mine premises, the appellants still had the temerity to wait for the very people whom they said they were scared of. It does not make sense. It betrays that the explanation of carrying the gun to protect themselves from their accomplices was as preposterous as it is incredible. The first appellant worked at a mine. The gun was supposed to be used for protection in the transportation of bullion and nothing else. Ironically, he used it in the robbery of bullion.

Lastly, under this head, the appellants argued in ground four that the court a quo erred and misdirected itself by convicting the appellants of robbery of carbons when the carbons were not produced as an exhibit and no assayer’s report was tendered to establish that the alleged carbons contained gold and the gold content thereof. However, at the hearing, counsel for the appellants conceded that the ground was misplaced because it addressed the question of sentence rather than conviction. We couldn’t agree more. The presence of gold in the carbons is material for purposes of sentence.

Inconsistencies in witness statements

In ground of appeal number seven, the appellants argued that the court a quo erred in convicting them on the strength of inconsistent evidence from state witnesses. It is essential to recognise that, although the evidence presented by the State witnesses had slight differences, the court a quo found that these differences were immaterial. At pp. 5-6 of her judgment, the trial magistrate addressed that issue and stated that the inconsistencies did not affect the totality of the evidence. She said: -

“There was an issue of how police officers differed in the manner they captured and identified the number plates.  The first police officer indicated that he captured them as the headlights were on, whilst the second indicated that he used the number plate lights.  The defence thus asked how it was possible for them to observe differently since they were at the same place. It does not go to the root of the matter. What is important is that it is the same car which ferried the accused persons from Kwekwe to Shangani. The same car had six people who disembarked and entered the mine. That same vehicle is the one from which Accused 2 and 3 were apprehended from. The discrepancies, thus, were not fundamental. I believe the defence in advancing this argument wanted the court to disbelieve the testimony of the police officers and make a finding that the said vehicle never got to the mine but was at Shangani. Even if the court were to discard the evidence of police officers on identifying the vehicle, the evidence of Last Ndlovu suffices. He told the court that upon his arrival at Kwekwe, he met up with six men, including accused two and three. It is the same accused persons who were apprehended in the vicinity of the crime scene. The same accused persons who ferried the first together with the deceased and the ones at large to the mine.”

The appellants must be aware that for inconsistencies in the evidence of State witnesses to play in their favour, the materiality of such discrepancies must be apparent. Like the trial court put it, the essence of the number plate was not evident in the appellants’ argument. The court a quo said it had the luxury of disregarding the evidence of how the car's registration numbers were captured, yet still convicted the appellants. Neither denies having transported the other robbers from Kwekwe to Shangani. They had earlier been tied to the conspiracy through the evidence of Last.  The vehicle was, therefore, simply a bonus to the prosecution’s case. In that regard, the court a quo was correct in stating that the inconsistencies were insignificant. Ground of appeal number seven is, therefore, equally without merit.

Ground of appeal number eight is baseless. An appeal is based on the four corners of the record of proceedings. The appellants cannot possibly anchor their appeal on an issue that does not appear on the record. As a result, we deemed the ground of appeal to be invalid.

The fifth ground of appeal, which deals with a misinterpretation of the COVID-19 regulations, is equally invalid in this appeal. It was not the COVID regulations which were under consideration. The court a quo referred to them as a basis for some of the conclusions it drew. The appellants were not charged with contravening the COVID-19 regulations, and even then, the court merely commented on the regulations in passing. Attacking that is akin to attacking every line of reasoning by the trial court.

Given the hopelessness of the entirety of the grounds of appeal discussed above, it needs no emphasis that the appeal against conviction was doomed to fail.

The appeal against the sentence

Whether the sentence imposed by the court a quo induces a sense of shock

In her sentencing judgment, the learned regional magistrate explained that the robbery involved violence, which resulted in serious injuries not only to the complainant but also to some of the robbers themselves. In fact, one of the robbers died from the exchange of gunfire. Further, there was clear pre-planning of the offence, which increased the appellants’ moral blameworthiness. In addition, the complainant stood to lose property of high value.  An assayer’s report would only have been necessary if the court was bent on ordering restitution. It was not required because all the carbons were recovered. The robbery took place at a gold mine. The complainant testified about the value of his carbons. The court a quo accepted that explanation and the value placed on the carbons. S.I. 146 of 2023, Criminal Procedure (Sentencing Guidelines) Regulations, 2023, provide that the presumptive sentence for a robbery committed in aggravating circumstances is 20 years' imprisonment. If anything, then the sentence of 10 years imprisonment imposed on the appellants by the court a quo was a slap on the wrist for such an egregious robbery in which firearms and other weapons were used and resulted in the death of a person.

As shown by the analysis above and the court a quo’s judgment, it is incorrect to suggest that the appellants played a limited role in the robbery. We stated earlier that the uncontroverted evidence was that the first appellant was, in fact, one of the ring leaders of the robbery. Being in charge of a car that ferries conspirators to the crime scene and acting as the getaway car driver is, by any standard, playing a massive role in a robbery. The allegation that the sentencing court adopted an omnibus approach is therefore misplaced.

In S v Madondo 1989 (1) ZLR 300 (H), this court, remarking about the sentencing of robbers, held that:

“Robbery is an inherently serious offence. It usually involves premeditation, criminal resolve and purpose, brazen execution, an attack on a human victim with an attendant disregard of that person’s right to personal security and forceful dispossession of whatever property the victim has. It is also a terrifying and degrading experience. The victim is injured in his person and his property. The robber acts with contempt and callousness. It is therefore proper to regard robbery as a particularly reprehensible form of criminal behaviour. That attitude should be reflected in the sentence.”

We cannot demonstrate it in any better way than it was stated above, that the appellants were fortunate to receive an effective eight years imprisonment.  In the end, the appeal against sentence is also clearly without merit and must be dismissed.

Disposition

We have already demonstrated the futility of all the grounds of appeal against both conviction and sentence. The totality of the evidence that the appellants committed the offence is overwhelming. The court a quo was correct in finding that their defence was palpably false. The sentence was in no way out of sync with others imposed for similar transgressions. The court a quo imposed on the appellants, a sentence that is almost half of the presumptive sentence. It therefore did not induce any sense of shock. The fate of the appeal is therefore sealed.

In the result, the appeal against both conviction and sentence is without merit. We direct that it be and is hereby dismissed in its entirety.

MUTEVEDZI J………………………………………………..

NDLOVU J……………………………………………Agrees

Chitsa & Masvaka Law Chambers, the first appellant’s legal practitioners

T.K.Takaindisa Criminal Law Chambers, second appellant’s legal practitioners

National Prosecuting Authority, the State’s legal practitioners