Dennis Makaka v The State

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HH 671-18
B 1171/18
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DENNIS MAKAKA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI  J

HARARE, 17 October 2018

Bail Pending Appeal

Applicant, in person

R Chikosha, for respondent

CHITAPI J:  Applicant was convicted of the offence of unlawful possession of a firearm as defined in s 4 of the Firearms Act, [Chapter 10:09]. He was convicted by the Magistrate at Harare on 12 June 2018. The applicant was sentenced to 4 years imprisonment with 1 year suspended on conditions of good behavior.  This left him to serve an effective 3 year sentence. The applicant was aggrieved by the judgment and sentence and noted an appeal to this court.  The appeal is pending determination under case No. CA 345/18.

The brief facts of the case were that the applicant is a resident of Johannesburg South Africa. His address was given as 122 Mullen Bezetenhood, Yeovil, Johannesburg. It was alleged that the accused who was on the wanted list as a suspect in robbery cases committed within the greater Harare and surrounding areas was at Mandamabwe Growth Point Chivi. The police followed up on the information and arrested the applicant at the said growth point. Upon the accused’s arrest, he was allegedly found in possession of a South African Police Service (SAPS) C Z pistol black in colour. The pistol was charged with 11 rounds of live ammunition. The pistol serial number had been erased. The accused failed to produce a fire arm certificate which would have authorized him to possess the fire arm.

The applicant elected to testify at his trial. His defence was that of entrapment. He averred that someone who pretended to be a person who had his goods telephoned the applicant to attend at Mandamabwe Business Centre. The applicant on arrival at Mandamabwe  found a lot of people there. There was commotion because a person had been shot. The applicant enquired as to what happened and was advised that occupants of a vehicle parked nearby had shot the person. It then turned out that the vehicle referred to was the one that he had been directed to when he arranged to meet with the person who was to give him his property. The applicant proceeded to that vehicle and knocked at the window. Four Police officers in civilian clothes then emerged out of the vehicle and arrested him. The police took his wallet and cosmetic bag. He then saw some other persons in the vehicle who were under arrest. He was assaulted and shown some fire-arms. The police then accused him of being the owner of one of the fire-arms. He was then brought to Harare where it was alleged that he had committed a robbery.

The issue for determination by the trial court was whether or not the applicant was in unlawful possession of a fire-arm upon his arrest. I have read through the record of proceedings. The state led evidence from two police officers from Homicide section whose evidence corroborated each other. They were investigators in several robbery cases which occurred in Harare area and environs. They arrested two suspects in Harare for robberies which occurred within Harare and Chitungwiza areas. The suspects co-operated with the police in disclosing their accomplices. The accused then telephoned one of the arrested accomplices without knowing that the suspect was in the hands of the police. The accused then came to the shopping centre oblivious of the presence of the police. He was arrested and upon searching him, the fire-arm, the subject matter of the charge against the applicant was found in his possession.

Two police officers gave evidence corroborative of each other. They testified that the applicant was arrested in a trap or ambush and that it was a chance arrest in that the applicant telephoned a person whom they had arrested and was in their custody for robbery. The applicant was lured to the vehicle where the suspect and police were. He was then arrested and the fire-arm recovered upon a search of his person. The police gave evidence that the applicant telephoned the suspect they were holding to describe his exact location and police flashed the lights of the vehicle they were in. The applicant then proceeded to the vehicle and was arrested.

The applicant’s defence was that the police simply arrested him for no reason and accused him of being the owner of a pistol which he had no knowledge of. The trial magistrate in her judgment correctly identified the issue for determination as whether or not to believe the evidence of the State witnesses that the applicant had the pistol in his possession or it was planted on him. The applicant’s explanation that the purposes of his visit was to collect his Brazilian hair from the suspect Huni was disbelieved by the court because Huni did not have any Brazilian hair on him when arrested. The court believed the police officer’s evidence that their driving all the way to Chivi from Harare was on a follow up on information gathered from an arrested suspect who volunteered information that there was a plan to commit robberies in Zvishavane with his accomplices. The accused walked into a trap not organised for him beforehand by the police. On being searched by the police, they recovered on his person the pistol in respect of whose unlicensed possession, the accused  was charged, tried and convicted.

The trial magistrate was impressed by the credibility and demeanour of State witnesses. The applicant’s defence that the police planted the pistol on him was rightly rejected and does not deserve scrutiny. If the police were intent on just planting evidence on the applicant, they would have co-charged him not just with possession of the fire-arm but with more serious offences of robbery for which the applicants’ accomplices had been arrested. The applicant’s defence that he had gone to the scene of his arrest to collect his Brazilian hair was dismissed by the magistrate who reasoned correctly in my view and on the facts that the applicant had intended to team up with his gang of armed robbers but did not know that the gang had already been arrested. The applicant walked into a trap and the reason he was arrested was that he is the one phoning suspects who were already under arrest and was lured to where they were being held.

Having considered the proposed grounds of appeal which the applicant seeks to rely on upon against conviction, they are not only generalized as to be excepiable but they raise issues which the trial court was live to and meticulously dealt with. The other ground that the applicant raised to the effect that the proceedings were conducted in Shona yet he had chosen Ndebele as the language which he was comfortable with is an issue which exercised my mind. I directed that the State counsel should find out what transpired vis-à-vis the language used by the applicant. The trial court public prosecutor and the interpreter deposed to affidavits in which they pointed out that the applicant freely and voluntarily elected to speak in Shona. The applicant before me indicated that he understood Shona albeit he was more comfortable with Ndebele. I do not consider that the ground of appeal has prospects of success moreso that the applicant does not take issue with the authenticity of the record as not reflecting what he said in the Shona language that he says he was not at home with.

Although the applicant purports that his appeal is against both conviction and sentence, there is nothing in the grounds of appeal to motivate the appeal against sentence. There are no grounds of appeal against sentence set out in the grounds of appeal.

From the totality of the evidence and the magistrate’s judgment, this appeal enjoys no prospects of success and the application for bail pending appeal is dismissed.

National Prosecuting Authority, respondent’s legal practitioners