Nkani Khoza and Jimmy Moyo and Collet Moyo v The State

### Preamble
1
Hb 128/28
Hcbcr 1426/25
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NKANI KHOZA

AND

JIMMY MOYO

AND

COLLET MOYO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MUTEVEDZI & NDLOVU JJ:

BULAWAYO: 29 MAY 2025 AND 23 JULY 2025

Criminal Appeal.

E. Mlalazi for the appellant.

Ms. T.C. Mujokoro for the Respondent.

NDLOVU J: This is an appeal by all the appellants against a conviction by the court of a Provincial Magistrate (“the court a quo”) sitting at Bulawayo on 5 March 2025. The court a quo convicted the appellants of two (2) counts of the offence of “Assault” as defined in Section 89(1) of the Criminal Law (Codification and Reform), [Chapter 9:23 (the CODE).

BACKGROUND

[1] The first appellant is Nkani Khoza (Nkani), a 65-year-old male; the second appellant is Jimmy Moyo (Jimmy), a 65-year-old male; and the third appellant is Collet Moyo (Collet), a 32-year-old male. The first complainant is Persistence Chatambarara, whilst the second complainant is Hardlife Dube. Both complainants are males aged 34 years.

[2] At their trial, all the appellants pleaded not guilty to both counts. In count 1, it was alleged that on the 27th day of December 2024, at approximately 09:00 hours, the complainant was in the company of Virginia Khoza, Melusi Khumalo and Hardlife Dube loading cattle into a truck at Wessels Village, Fort Rixon. It was further alleged that Nkani then arrived driving a Ford Ranger motor vehicle. He hit the complainant once on the left side of the body, and mobilised the second and third appellants and other villagers who are still at large to attack the complainant for unlawfully taking his cattle. It was further alleged that the first Complainant was hit once with a knobkerrie on the left thigh by Nkani and struck on the left hand by Jimmy. In addition, Jimmy and Collet also took turns to kick the Complainant several times on the ribs.

[3] The allegations in count two were that, following the events in count one, Nkani hit the second complainant on the hand using a knobkerrie several times. It was further alleged that Jimmy then also struck the second complainant on the head with a log once, while Collet struck the same complainant with a stone once. The complainant escaped and subsequently reported the matter to the police.

PROCEEDINGS BEFORE THE COURT A QUO

The state led evidence from the two complainants.

Persistence Chatambara (Persistence)

[4] As already stated, Persistence was the first complainant. He said that on the day in question, he, together with a driver and the second complainant, escorted Mrs Khoza (Nkani’s wife) to the Nkani’s homestead to take cattle. The trio met the Nkani, who was driving his Ford Ranger. Nkani drove and bumped his car onto Persistence once on the left side of the body. Persistence fell to the ground. He further testified that Nkani then got out of the car, heading towards Mrs Khoza, shouted at her and assaulted her with a fist until the second complainant intervened and held Nkani’s hand to hinder him from further assaulting Mrs Khoza. At that point, Nkani then mobilised a team comprising villagers, Jimmy, and Collet to help him attack the complainants. Nkani struck Persistence once with a knobkerrie on the left thigh, while Jimmy hit him several times using a log. The first complainant further testified that Collet hit him once on the left leg using a knobkerrie, resulting in him sustaining a fracture. Jimmy and Collet continued to take turns kicking him on the ribs. A medical report, which showed the injuries suffered by Persistence, was tendered as an exhibit.

Hardlife Dube (Hardlife)

[5] He testified that on the day the allegations arose, he went to Nkani’s homestead, accompanying Mrs Khoza. When they arrived, Nkani approached them while driving his car and struck Persistence. He further indicated that Nkani reversed his vehicle, approached Mrs Khoza, who was taking pictures with her phone, and assaulted her. It was his testimony that he was the one who held Nkani back in an attempt to stop him from further assaulting Mrs Khoza. He alleged that Jimmy struck him once on the head with a log, while Nkani hit him multiple times on both hands. Collet hit him on the back with a stone as he attempted to flee the scene. Hardlife also testified that the appellants were assisted in assaulting him by other villagers. Once more, a medical report was tendered to show the injuries that Hardlife sustained. Thereafter, the State closed its case.

[6] The defence opened its case with Nkani’s testimony. He adopted his defence outline. Under cross-examination, Nkani maintained that he didn’t assault the complainant. He also said Collet, the third appellant, wasn’t present at the scene because he was ploughing on the day in question. He insisted that it was Hardlife (the second complainant) who had attacked him, and the villagers had intervened to stop Hardlife from further assaulting him.

[7] Jimmy (the second appellant) also testified in his defence. He denied ever assaulting the complainants. He insisted in his testimony that he only made a call to Nkani as the complainants were loading Nkani’s cattle into a truck. He further testified that he never saw Nkani assaulting Persistence on the thigh.

[8] Lastly, Collet (the third appellant) also testified and adopted his defence outline as his primary evidence. He maintained his defence of alibi under cross-examination. He stated that on the day in question, he was at the fields tilling land and denied ever assaulting the complainants.

FINDINGS BY THE COURT A QUO

[9] The appellants were found guilty on both counts. The court a quo treated both counts as one for sentencing and ordered the trio to each pay a fine of USD 400.00 or its equivalent in the local currency at the prevailing bank rate, or in default of payment, face 8 months' imprisonment. In addition, they were each sentenced to 6 months imprisonment, which was wholly suspended for 5 years, on the condition that each offender does not, within that period, commit any offence involving violence against the person of another, for which, upon conviction, the offender will be sentenced to imprisonment without the option of a fine.

[10] Before arriving at the above verdict and sentence, the court a quo made several findings. First, it was found as a fact that part of the two-state witnesses’ testimonies was embellished. It particularly pointed to the part where they stated that the first appellant, that is, Nkani, had bumped the first complainant with his car, as incredulous. The court a quo stated that if indeed that had happened, the complainant ought to have suffered more serious injuries than those he revealed in court. It also noted that the medical report did not support the claim that it had happened. Tellingly, it did not find the witnesses to have outright lied, but rather that they just exaggerated their injuries. The trial magistrate further held that he accepted the other part of the witnesses’ evidence, which was consistent with the injuries they had suffered and was supported by the medical report. It was further accepted that the third appellant,

Collet had struck the first complainant on the hand and caused a fracture. Regarding the second complainant, the court a quo found that it was true that the appellants had assaulted him repeatedly on the hands. It said that the testimony was supported by the fact that one of the complainant’s fingers was broken and had subsequently been deformed. The medical report also supported the assault.

[11] Further, the court a quo said the arguments by the appellants that they had not assaulted the complainants were unreasonable because whilst the complainants conceded that a mob had attacked them, they had amongst those villagers identified the appellants who had been the instigators and co-perpetrators of the assault. It concluded that the medical report found that the parts on which the complainants said they had been attacked had injuries and that it proved the truthfulness of the complainants’ evidence. It acknowledged that the third appellant had indeed raised an alibi, but it dismissed the alibi in one sweeping statement that he was lying because he had been seen at the scene by the complainants. Because the evidence of the complainants was supported by the medical reports, which showed the injuries sustained by the complainants, the magistrate said the defences raised by the appellants were unreasonable and false.

[12] Further, the court a quo accepted that the defence of property was a complete defence to a charge of assault. It, however, said there was no evidence that the appellants were under attack because they (appellants) had not produced any medical reports or shown the court any injuries to prove the attack.

PROCEEDINGS BEFORE THIS COURT

[13] Irked by the court’s decision, the appellants filed a notice of appeal against the conviction. The grounds of appeal were couched as follows:

GROUNDS OF APPEAL

1. The court a quo erred and misdirected itself in both the law and facts by convicting the Appellants on two (2) counts of the charge of “Assault” when the State had failed to discharge the onus, as required by Section 18 (1) of the Criminal Law (Codification and Reform) Act (supra), to prove beyond a reasonable doubt two of the essential elements of the offence charged, namely, that each Appellant assaulted each complainant, Persistence Chatambara and Hardlife Dube and inflicted injuries as alleged in the Charge.

2. The court a quo erred and misdirected itself on both the law and the facts by convicting the Appellants on two (2) counts of the charge of “Assault” in that it failed to appreciate that the complainants’ concession and admission that they were assaulted by the villagers (mob), the court’s finding thereof and the totality of the evidence placed before it casts a reasonable doubt on the State case.

3. The court a quo erred and misdirected itself in making a factual finding that each Appellant’s defence and version of events was unreasonable and untrue, in that such a factual finding is grossly unreasonable, and that no reasonable court applying its mind to the same facts and evidence would have arrived at the same conclusion.

4. The court a quo erred in law and facts by convicting the Appellants on two (2) counts of the charge of “Assault” in that its findings, conclusion and assessment of the totality of evidence placed before it is so outrageous in its defiance of logic that no reasonable court applying its mind to the matter could have arrived at such a conclusion.

RELIEF SOUGHT

WHEREFORE, the exact nature of the relief sought as required by Rule 95 (10) (d) of the High Court Rules, 2021, is as follows:

1. The instant Appeal against conviction on two (2) counts on the charge of “Assault” be and is hereby allowed/succeeds.

2. The judgment of the court a quo in respect of the conviction of each Appellant on two (2) counts on the charge of “Assault” be and is hereby set aside and is substituted by the following order:

“Each accused person be and is hereby found not guilty and acquitted on both counts on the charge of Assault.”

[14] At the hearing of the appeal, Mr Mlalazi, for the appellants, indicated that he was abiding by his grounds of appeal and heads of argument which he had duly filed. He argued that the court a quo had mixed up issues and confused itself by failing to appreciate the difference between the defence of property and the defence of the person. As a result, it had concerned itself with the defence of self instead of the defence of property, which is the defence that the appellants had raised at their trial. On her part, Ms Mujokoro, for the respondent, equally maintained that the court had reached the correct decision when it convicted all the appellants of the two counts of assault. She said the state had proved all the essential elements of the crime of assault.

ISSUES FOR DETERMINATION.

A.   Did the state’s case in the court a quo prove beyond a reasonable doubt the essential elements of the offence of assault?

Did the complainants’ concession that a mob assaulted them absolve the appellants of liability for the crime of assault?

C.  Whether the court a quo erred and misdirected itself in making a factual finding that each appellant’s defence and version of events was unreasonable and untrue, such that the factual finding was grossly unreasonable, that no court acting reasonably and applying its mind to the same facts and evidence could have arrived at the same conclusion.

Was the defence of property available to the appellants in this case?

We now turn to deal with each of the grounds of appeal.

Did the state’s case in the court a quo prove beyond a reasonable doubt the two essential elements of the offence of assault?

[15] The appellants contended that the court a quo erred and misdirected itself in both the law and facts by convicting the appellants on two (2) counts of the charge of “Assault” when the State had failed to prove beyond a reasonable doubt the two essential elements of the offence. In the case of Muchenu vs The State HB246-16, it was stated that,

“In our law, the state has to prove the guilt of an accused person beyond a reasonable doubt. Proof of reasonable doubt does not translate to proof beyond a shadow of a doubt. Proof beyond a reasonable doubt does not mean proof of an absolute degree of certainty. It simply means that there should be proof as leaves no reasonable doubt in the mind of an ordinary man capable of sound judgment and of appreciating human motivations. The State does not have to close every avenue of escape and fanciful or remote possibilities. See the case of S v Isolano 1985 (1) ZLR 62(S).”

[16] In terms of s 89 1) of the CODE, the crime of assault is committed where a person assaults another or threatens another, whether by words or gesture, with the intention to cause bodily harm to that other person or realising that there is a real risk or possibility that such bodily harm may be occasioned. The two stand-out elements of the crime are therefore the assault/threat (by words/gesture) and the intention to cause bodily harm. Juxtaposing those with the evidence led at the trial, I do not find fault with the findings made by the court a quo. The trial court did not err when it concluded that, from the evidence adduced by the State, the appellants assaulted the complainants on both counts. The appellants sought to raise two mutually destructive defences. The defence of property, which I will deal with later, could only succeed in instances where the appellants were admitting to assaulting the complainants but raising a ground of justification that they only did so to prevent the complainants from unlawfully expropriating their property. Put differently, the appellants admitted that they assaulted the complainants. There is therefore no question of whether or not the evidence adduced sufficed to satisfy the essential elements of the crime. On that basis alone, the appellants were convicted correctly. As duly admitted by Nkani, the first appellant, it is clear that after being advised that the complainants had come to his homestead to take his cattle, he arrived at his homestead in a fit of anger and sought to attack the first complainant. Overpowered by the complainants, he enlisted the other appellants and mobilised villagers to assist him in assaulting the complainants. The first appellant rushed to report to the police to cover his tracks, fearing and knowing that he had committed an offence.

[17] The defence that it was the second complainant who attacked the first appellant and that the villagers intervened to stop the second complainant from attacking him was rightly rejected. None of the defence testimonies corroborated the first appellant’s testimony. Surely at least one person should have witnessed the second complainant assaulting the first appellant as alleged. The complainants’ testimonies were corroborated by the medical reports, which indeed stated that they were assaulted. The testimonies met the standard of proof required by law in applying the relevant test. The court a quo determined the matter based on the credibility of the witnesses, and there was nothing in the evidence to suggest that the court made an incorrect assessment of the evidence. This ground of appeal fails.

Did the complainants’ concession that a mob assaulted them absolve the appellants of liability for the crime of assault?

[18] It is a trite law that convictions are individualised. The attack on the complainants was more of a gang assault than anything. The complainants witnessed the attack and were clear on the events that transpired when the assault was perpetrated. The appellants were identified as accepted by the court a quo. The fact that there was a concession that a mob also assaulted the complainants does not take away the fact that the appellants worked in cahoots with the mob in performing the assault. The irrefutable evidence is that it was Nkani who mobilised the villagers to attack the complainants. It must follow, therefore, that even if Nkani had not physically touched any of the complainants, he could not escape liability for the assault on the premises that he was acting in collaboration with the assailants. That he commandeered them to attack the complainants squarely brought him within the confines of s 196A of the CODE. The villagers conspired and acted in common purpose with the appellants in committing the assaults. To argue that there was no evidence to prove common purpose is a failure to appreciate the nature of the evidence on record and its import. The appellants were shown to have acted together with the villagers, thereby establishing their guilt beyond a reasonable doubt. The fact that the villagers are at large does not absolve the appellants of guilt. They remain equally guilty. This ground of appeal lacks merit and is therefore rejected.

Whether the court a quo erred and misdirected itself in making a factual finding that each appellant’s defence and version of events was unreasonable and untrue, in that such a factual finding is grossly unreasonable, that no reasonable court applying its mind to the same facts and evidence would have arrived at the same conclusion.

[19] The appellants contend that the court a quo erred and misdirected itself in making a factual finding that each appellant’s defence and version of events was unreasonable and untrue, making its factual findings so grossly unreasonable that no court acting reasonably and applying its mind to the same facts and evidence could have arrived at the same conclusion.

[20] In the case of S v Khumalo HB 28-24, it was established that,

“It is trite that an appellate court can only interfere with the trial court’s findings of credibility and facts if such findings are so outrageous in their defence of logic that no reasonable person properly applying their mind to the question to be decided would arrive at such a conclusion. See Barros & Another v Chimpondah 1999 (1) ZLR 58 (S), Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.”

[21] Going by the above principle, the court a quo’s findings cannot be faulted. The conclusions were reasonable, not contrary to common sense and not outrageous. They did not in any way defy logic. The evidence adduced in the court a quo is clear and straightforward, such that there is no justification for this court’s intervention. The court a quo gave due weight to both the State case and the defence case, and, after weighing both testimonies, found the defence’s version of events improbable and untrue. For instance, the first appellant claims that he was attacked with a knobkerrie. If he had, he was likely to have suffered injuries in one form or another. He went to the police station soon after the incident. He must have at least shown the police the injuries which he sustained from such a brutal attack. Yet that did not happen, and no medical or physical evidence was provided to support that. In the case of S v Mlambo 1994 (2) ZLR 410 (S), GUBBAY CJ (as he then was) held that:

“The assessment of the credibility of a witness is par excellence the province of the trial court and ought not to be disregarded by an appellate court unless satisfied that it defies reason and common sense.”

As already shown, the assessment done by the trial court does not in any way defy logic.

As such, the ground of appeal in respect of the conviction in both counts lacks merit.

Was the defence of property available to the appellants in this case?

[22] At the hearing, Mr Mlalazi’s oral argument was surprising. He said the argument regarding the defence of property fell under the cover of the third ground of appeal. That argument only served to demonstrate the mala fides in it. I say so because counsel took it up and argued away from the evidence on record.

[23] To begin with, the first appellant or any of the appellants for that matter, did not plead the defence of property in the court a quo. Excerpts from the appellants’ defence outline in the court a quo vindicate my view. They went thus:

3.2. Further, the accused persons will also deny ever unlawfully and intentionally or otherwise actually assaulting the complainant herein as alleged or otherwise.

3.6. That the first accused told them to stop what they were doing, but they refused, the 1st accused then jumped into the kraal to untie his cow, and the two complainants started assaulting the 1st accused with knobkerries. 1st Accused had to run away and inform villagers….

3.9. The 1st accused person denies all the allegations but will state that at all material times he acted necessary in defence of his property, he defended his property and also called the police. He did what a reasonable man is expected to do in the circumstances. He is an old man and cannot assault any person at his age. The complainants fought with villagers, period.

3.10. The 2nd Accused disputes all allegations against him and states that his role was limited to only phoning the 1st Accused, a move that he now realises upset the complainant, and they have now resorted to fabricating allegations against him.

3.11. The 3rd Accused denies the charges in toto, on the day he was ploughing on the fields and did not go to the scene at the material time. He challenges the complainants to show the videos they took at the scene, as he is adamant that he will not appear in those videos, as he was not there. He is simply being bundled into this case because the complainants are fighting his father.

[24] What is clear from the above excerpts is that all the appellants denied ever assaulting one or both complainants. By jumping into the kraal and untying his cow, the first appellant believed he was acting in defence of his property. I am not sure, defending it from what? But the long and short of it is that his jumping into the kraal and trying to untie the cow was of no moment to the charge of assault he was facing. He denies ever assaulting the complainants. That is his defence. Raising a defence of property in such circumstances is no different from a man who denies sexual intercourse with his victim of rape but alleges that she consented. The two are mutually exclusive.

[25] Furthermore, ground of appeal number 3 neither expressly mentions nor insinuates that any of the appellants’ complaints is that the court a quo disregarded the defence that the appellant acted in defence of private property. It is couched as follows;

3. The court a quo erred and misdirected itself in making a factual finding that each Appellant’s defence and version of events was unreasonable and untrue, in that such a factual finding is grossly unreasonable, and that no reasonable court applying its mind to the same facts and evidence would have arrived at the same conclusion.”

[26] The ground of appeal attacks a factual finding by the court a quo. It is not anywhere near an attack on a failure by the trier of fact to apply the law to a proven set of facts. A failure to uphold a proven and known defence at law to proven facts is to err on a point of law and is appealable. Ground of appeal number 3 has nothing to do with what Mr Mlalazi argued orally in Court that the first appellant, in particular, in assaulting the complainants, was acting in defence of his property. In essence, he argued outside the grounds of his appeal filed of record, which is improper.

[27] None of the appellants admitted to assaulting either of the complainants, in circumstances justified by law. It is elementary that he who pleads a ground of justification in a criminal trial admits having acted or not acted as alleged but denies criminal liability by explaining his apparent criminal conduct as legally excused by the operation of the law. There was no need for the appellants to have been coy about it, especially when all of them were navigating the trial with a battery of counsel. In this case, the defence of private property cannot be raised or upheld because the appellants deny ever having acted in a manner justifying its invocation. It simply does not arise for consideration. The oral argument by counsel before this court, purportedly in support of the third ground of appeal, is therefore dismissed. The alibi raised by the third appellant

[28] An alibi is a defence where a person accused of a crime refutes the allegations on the basis that they could not have committed the offence in question because, at the time it was committed, they could not possibly have been present, having been at some other place at the same time.

[29] The law in this jurisdiction is settled that where an accused raises an alibi, the police and prosecution are required to investigate the alibi to ascertain its truthfulness or otherwise. On his part, an accused must disclose the alibi at the earliest possible opportunity. He or she must be able to advise the police at the time of his/her arrest or soon thereafter, about where he or she alleges to have been at the time the crime was committed. See the cases of State v Musakwa 1995 (1) ZLR 1 at p 3 D-E, and S v Mandaza HH116/24 at p. 8.

[30] In this case, there is no indication when the third appellant raised his alibi.

No one asked him about it. The prosecutor acted like it had not been raised. The magistrate, as said earlier, took a perfunctory approach to it. The alibi was never investigated. It was ignored by everyone, possibly except the first appellant, who vouched for the third appellant in his testimony.

[31] The third appellant said he was ploughing in the fields when the fracas occurred. He said he wasn’t at the scene. Without a proper investigation having been undertaken into his alibi, his defence remains unassailable. It is no exaggeration to say that the failures of police officers and prosecutors may at times lead to the acquittal of otherwise guilty accused persons. I have no choice but to conclude that the third appellant must be set free solely on the ground of failure to investigate the alibi that he raised.

DISPOSITION

[32] In the end, all the grounds of appeal raised by the first and second appellants ought to fail for the reasons already given. The third appellant’s appeal succeeds based on the alibi. I therefore order as follows:

ORDER

a. In respect of the first and second appellant:

“The appeal against conviction on both counts be and is hereby dismissed in its entirety.”

b. In respect of the third appellant

“i. The appeal against conviction on both counts be and is hereby allowed.

ii. The judgment of the court a quo be and is hereby set aside, and in its place is substituted the following:

“That the third accused person (Collet Moyo) be and is hereby found not guilty and is acquitted of both counts of assault.

The Sentence imposed upon him by the Court a quo be and is hereby set aside.”

NDLOVU J

MUTEVEDZI J ……………………………………Agrees

Dube Banda- Nzarayapenga, appellants’ legal practitioners’

National Prosecuting Authority, respondent’s legal practitioners