The State v Elijah Ndebele and Nkosinathi Masuku

### Preamble
1
HB 48-19
HCAR 1831/17
CRB GND 494-5/17
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THE STATE

versus

ELIJAH NDEBELE

and

NKOSINATHI MASUKU

HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 4 APRIL 2019

Criminal Review

TAKUVA J:	The facts of this case are melo-dramatic.  They are as follows;

On the 16th day of May 2016 at around 0900 hours the complainant’s herdboy penned off 25 herds of cattle to a grazing area in Zhulube, Filabusi.  On the 30th day of May 2016, he discovered that six of the cattle were missing namely, 2 cows, 2 male calves, a heifer and an ox.  Meanwhile the two accused persons connived and stole the complainant’s heifer at Theleka grazing lands.  They tied its legs, covered it with a big plastic sack before loading it in accused two’s scotch-cart.

At approximately 12 midnight, on the 31st of May 2016 the accused persons were intercepted by three Zimbabwe Republic Police officers who were on patrol.  Upon seeing the police officers, the accused persons jumped off from the scotch-cart and fled into the bush.  Constable Ngwende who had a torch flashed it on accused one, Elijah Ndebele’s face.  He immediately switched it off resulting in Ndebele being blinded by the darkness causing him to bump against a tree and was arrested.  He claimed ownership of the beast but could not satisfactorily explain how the heifer had come into their possession in the dead of night and why they were fleeing from police officers.

The second accused person Nkosinathi Masuku was tricked to come to the police on the pretext that the matter was being withdrawn.  He was arrested upon his arrival.  The beast was removed from the scotch-cart and tied to a tree at Filabusi police station while the police were looking for its owner.  On 5 June 2016, the complainant’s son brought three cows with no calves and claimed the heifer through earmarks that were similar to those on his herd.  When the heifer was released, it ran to its mother and started suckling.

Both accused persons were charged with contravening section 114 (2) (a) (i) (ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] “stock theft”.  Trial commenced and the State closed its case.  Both accused persons were put on their defence.  Accused one testified and called a number of witnesses who included his wife.  He applied for a further postponement to enable him to call his brother one Jethro Ndebele.  The court granted the postponement as requested.  From this point onwards, the court a quo summarized the events in the following words;

“Accused told the court that Jethro would come to testify about how accused had been arrested.  However, when the court date arrived the witness had still not turned up.  There had been two working days and a weekend from 18 October 2017 to 23 October 2017 to which the matters was postponed.  Now both accused one and his witness did not turn up.  Under the circumstances, the court set the judgment date as 30 October 2017 a full 7 days away, giving a provision that accused one might turn up on any other day with an explanation after which evidence of the witness Jethro could be taken.

When the 7 days came and passed, the court decided to proceed to judgment because it was clear that the witness was not coming nor was accused one.  At any rate, the court also formulated the opinion that this witness was going to testify on the surroundings of accused’s arrest, not anything related to the acquisition of the calf.  When all was considered, the court was convinced that the defences of accused were nowhere near plausible. At the same time, the State proved its case in every manner possible.  The accused are therefore both found guilty as charged.  Accused one is convicted in absentia.”  (emphasis added).

While I appreciate the court a quo’s frustration and desire to finalise this criminal trial in the best manner possible under the circumstances, the fact still remains that the first accused was convicted and sentenced in absentia contrary to the law- see S v Muendawoga 2004 (1) ZLR 70 (H).

In terms of section 194 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the code) a criminal trial shall take place in the presence of the accused except in those circumstances permitted by law.  The section provides;

“194 	PRESENCE OF ACCUSED

(1)	Every criminal trial shall take place and the witnesses shall, except as is otherwise

specifically provided by this Act or any other enactment, give their evidence viva voce in open court in the presence of the accused, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which event the court may order him to be removed and direct that the trial proceed in his absence.

(2)	If the accused absents himself during the trial without leave, the court may direct a warrant to be issued to arrest him and bring him before the court forthwith.

(3) 	-----.”  (my emphasis).

In casu, the court a quo should have proceeded in terms of subsection (2) supra by directing a warrant to be issued to arrest the first accused person.  Further, in terms of section 190 of the code, the court a quo was empowered to separate the trial of accused one from that of the second accused.

It states;

“When two or more persons are charged in the same indictment, summons or charge, whether with the same offence or with different offences, the court may at anytime during the trial on the application of the prosecutor or of any of the accused, direct that the trial of the accused or any of them shall be held separately from the trial of the other or others of them, and may abstain from giving a judgment as to any of such accused.” (My emphasis)

In the circumstances, the prosecutor should have applied for and the court should have directed that the two trials be separated.  An accused is entitled to hear reasons for judgment and sentence.  What worsens the situation is that not only was accused one deprived of an opportunity to mitigate but was also denied an opportunity to address the court regarding the existence or otherwise of special circumstances justifying a lesser penalty than the minimum mandatory sentence of 9 years imprisonment.  Further section 70 (i) (g) of he Constitution of Zimbabwe Amendment (No 20) requires that an accused be preent when being tried.

The interests of justice demand that these proceedings be rectified.

Accordingly, it is ordered that:

(a)	The proceedings in respect of accused two, one Nkosinathi Masuku be and are hereby confirmed.

(b)	The verdict and sentence in respect of accused one Elijah Ndebele be and are hereby set aside.

(c)	The matter in respect of accused one, Elijah Ndebele be and is here remitted to the same magistrate who is directed to do the following;

(i)	issue a warrant of arrest against accused one Elijah Ndebele,

(ii)	separate the trial of accused one from that of accused two.

(iii)	upon accused one’s arrest, proceed with his trial from where it ended when he

absconded up to its finality.

(iv)	the rest of the proceedings against accused one up to the stage he absented himself

without the leave of the court are valid.

Moyo J……………………………………………….agrees