Mehluli Sibanda v The State

### Preamble
1
HH 533-25
HCHCR 2006/25
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MEHLULI SIBANDA

versus

THE STATE

HIGH COURT OF ZIMBABWE

ZHOU and CHIKOWERO JJ

HARARE; 28 July 2025 and 08 September 2025

Criminal Appeal

K Ngwenya, for the appellant

R Chikosha, for the respondent

CHIKOWERO J:

[1]	This is an appeal from the judgment of the Magistrates Court sitting at Harare delivered on 9 April 2025 convicting the appellant of the crime of unlawful possession of a firearm as defined in s 4(1) of the Firearms Act [Chapter 10:09].

[2]	The sole issue arising in this appeal is whether the court a quo was correct in finding, as a fact, that the appellant possessed the firearm in question, namely a 9 mm Norinco Star Pistol serial number 43007403.

[3]	After a contested trial, the court a quo found that on 21 February 2024and at 0200hours at Mehluli Ncube Homestead, village 2 C Chief Mabhikwa, Insuza, the appellant had in his possession the firearm in question without a certificate authorizing such possession.

[4] 	The conviction rested on a finding that the prosecution witnesses were credible.  That being so we can only interfere with the factual finding mentioned in the preceding paragraph if we are satisfied that there is something grossly irregular in the proceedings to warrant such interference.  See S v Soko SC 118/92.  Absent such gross irregularity, the appellant must persuade us that the finding of fact that he possessed the firearm defies reason and common sense.  See S V Mlambo 1994(2) ZLR 410 (S) at 413C.

[5]	The kind of possession in casu is that defined in S v Mpa 2014(1) ZLR 572 (H) where Hungwe and Bere JJ (as they then were) said at 574C:

“A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it.”

[6]	The two witnesses produced by the prosecution were Detective Sergeants Isaiah Chikanda and Artwell Chidziva.  The former testified on 10 February 2025 and 12 March 2025.  The latter gave evidence on 12 March 2025.  This means both testified more than a year after the occurrence of the events forming the subject of the charge.

[7]	They told a simple and straightforward story.  They were part of a team of police officers investigating a case of robbery committed in aggravating circumstances.  The other team members were Detective Sergeant Gutsa and Detective Assistant Inspector Mudyawabikwa.  All four were based at the Criminal Investigations Department in Harare.

[8]	Their investigations took them to Bulawayo where they arrested one Bekimpilo Ncube.  The appellant, as was Bekimpilo Ncube (Bekimpilo) was a suspect in the robbery case. Since they did not know where the appellant resided, Bekimpilo led the police to the appellant’s residence mentioned at para 3 of this judgment.

[9]	It is there that they stumbled upon the firearm in question.  The same was on the bedroom floor, stashed in a black bag.  The only persons in that bedroom were the appellant and his spouse.

[10]	The two state witnesses explained that the reason why they did not arrest the appellant’s wife for unlawful possession of the firearm was because the appellant exonerated her.  He said it was him who possessed the firearm.

[11]	At the trial Chikanda testified as the investigating officer.  He said it was him who recovered the firearm.  He said Chidziva took the firearm and proceeded to make the appellant sign for the recovery of the firearm in Chidziva’s police notebook.  Chikanda told the court a quo that Chidziva and Gutsa conducted a search in the appellant’s bedroom while he himself was observing the search.  Chidziva said Chikanda conducted the search and recovered the firearm while he, Chidziva, observed the search.  Nothing turns on these minor variations in detail.  They do not go to the root of the matter.  The gist of the matter is that, working as a team, the police officers were investigating not a case of the unlawful possession of a firearm by the appellant.  Instead, they were investigating a case of robbery, arrested Bekimpilo in Bulawayo in connection therewith, were led by the latter to the appellant’s residence in Insuza where, by chance, they, still as a team, stumbled upon the firearm in question in the circumstances that we now know.

[12]	We agree with Mr Chikosha that the court a quo did not err in rejecting the appellant’s defence.  That defence was simply a denial of possession of the firearm in question.  At the trial, the prosecution produced that firearm as an exhibit.  Also produced by the prosecution was the ballistics report relating to that firearm.  What this means is that the firearm existed and that, therefore, the prosecution witnesses were not fabricating its existence and recovery.  The appellant wanted the court a quo to accept that the police planted that firearm on him in order to raise a false charge that he was in unlawful possession of that firearm at his residence in Insuza.  That to us appears illogical.  If the police were minded to plant a firearm on anybody so as to falsely allege that the person unlawfully possessed the firearm they could easily have done that with Bekimpilo whom they arrested in Bulawayo.  We have carefully read the record.  We did not detect anything to suggest that there was anything peculiar about the appellant that could have driven the police to plant a firearm on him, and not on Bekimpilo, so as to fabricate a charge against him.  It will be remembered that both Bekimpilo and the appellant were being investigated on a robbery charge.  It is that investigation which led the police to leave Harare for Bulawayo (where 	Bekimpilo was arrested).  It is that investigation which also led the police from Bulawayo to the appellant’s residence in Insuza.  The evidence of Chikanda and Chidziva make good reading.  They did not arrest the appellant’s spouse for unlawful possession of the firearm in question, despite her presence together with the appellant in the bedroom where the firearm was found because the appellant exonerated her.  If the police were malicious, as suggested by the appellant, there would have been nothing precluding them from arresting both spouses for unlawful possession of the same firearm.

[13]	Each case depends on its own facts.  It is not every case where police officers will be able to issue the seizure receipt in the form contemplated in S 49 of the Criminal Procedure and Evidence Act [Chapter 9:07].  In the present matter, the two state witnesses explained that they did not issue such a seizure receipt relative to the firearm because no such book was available both at neighboring stations and at their own station.  There is nothing strange about stationary running out at police stations.  But Chidziva still had his notebook.  He recorded the recovery of the firearm in that notebook.  The relevant page of the notebook was produced by consent.  If the appellant, who was legally represented at the trial, thought that the page did not form part of the relevant notebook he should not have consented to the production of the page only.  For our purposes, we must proceed on the basis that, the relevant exhibit having been produced by consent, the court a quo properly related to its contents, as spoken to by the two state witnesses, in assessing the evidence in its totality.  Both said that the appellant signed in the notebook to acknowledge recovery of the firearm from his possession.  It would have been desirable to subject that signature for examination by a questioned document examiner in case the purported signatory were to distance himself from being the author thereof.  However, the fact that the prosecution did not produce expert evidence to prove that it is the appellant who signed in the police notebook was not fatal to its case.  It is not the law that every piece of alleged fact must be proved beyond reasonable doubt for a conviction to ensure.  What must be proved beyond reasonable doubt is the case against an accused, and not an allegation.  At the end of the day, a court presiding over a criminal trial is required to weigh all the evidence in its totality to determine whether the case against an accused has been proved beyond reasonable doubt.

[14]	The court a quo did not have to decide whether it was the appellant who signed in the police notebook to acknowledge recovery of the firearm from his possession.  All it did, which was supported by the evidence on record, was to observe that the relevant signature, to a lay person (of which the court a quo was one) looked like the appellant’s signature on his warned and cautioned statement.  The entry in the police notebook (even without the appellant’s signature), taken together with the testimony of Chikanda and Chidziva, proves that a pistol was recovered from the appellant on the day in question at his named residence.  The recovery was effected at 2:00am.  This was not daytime.  It explains why neither the name of the pistol nor its serial number were recorded in the police notebook.  These were the early stages of that particular investigation.  Even then, that the firearm was a pistol and a 9mm one had been established.  Details relating to the type of the pistol and its serial number could always be established as the investigations unfolded.  We pause to say this.  If the team of police officers were malicious, bent on planting a firearm which was already in their possession (with both the serial number and type of firearm already known to them before reaching the appellant’s residence in Insuza) one would have expected to see those serial numbers and the type of the firearm reflected in that police notebook. As it is, the notebook records that it was a “9mm, unnamed pistol.” The appellant’s warned and cautioned statement was recorded on 22 February 2024 at 12.45pm.  This was a day after the Insuza incident.  It was now daytime.  The warn and caution alleged that the appellant was found in possession of a “9mm star pistol serial number 43007403 without a valid certificate”

The Forensic Ballistics Report recorded that it was a “9x19mm Norinco Pistol serial number 43007403.”

Despite Mr Ngwenya’s submissions, we are satisfied that the firearm reflected in the police notebook, warned and cautioned statement and the Forensic Ballistics Report was the same.  The serial number on the latter two exhibits puts this beyond reasonable doubt.  It is the same serial number.  It is the same firearm.  We have already explained why we take the view that the court a quo did not err in finding that this firearm was recovered from the appellant’s possession in Insuza.

[15]	We have looked at Ndlovu v The State HB 240/23as it speaks to the chain of custody.  There, Dube-Banda J with the concurrence of Kabasa J said at p4:

“The continuity of possession of evidence or custody of exhibits and its movement and location from the point of recovery at the scene of a crime or from a person, to its transportation to the laboratory for examination and until the time it is allowed and admitted in court, is known as the chain of custody or chain of evidence. The chain of custody is the most critical process of evidence documentation.”

It is true, as submitted by Mr Ngwenya, that not all the documentation tracing the movement of the firearm as contemplated in the chain was produced at the trial.  For instance, the exhibits register was not produced.  However, in the particular circumstances of this matter, the non-production of affidavits deposed to by each and every person who handled the firearm in question as well as the fact that the exhibits register was not produced does not detract from the correctness of the conviction.  The defence was a simple denial of possession of the firearm.  It was not an admission of possession of some lawful object, recovered from the appellant, but substituted along the way with the firearm which formed the subject of the charge. On the evidence on record, once the court a quo believed the oral testimony of the two state witnesses, supported by such exhibits as were produced a quo, the conviction of the appellant was inevitable.  A blow-by-blow production of all the documents tracing the movement of the firearm from its recovery to its eventual production in court was not necessary.  The two state witnesses testified and were believed that Chikanda took custody of the firearm from its recovery in Insuza right up to it being entered in the exhibits register at the Criminal Investigations Department in Harare.

[16]	Despite Mr Ngwenya’s painstaking efforts, the appellant has failed to reach the threshold for intereference by this court with the factual findings made aquo.  The appeal against the conviction is without merit.  To hold otherwise would be to accede to a suggestion that the court a quo should have assessed the evidence as if it were involved in a mathematical exercise.

[17]	The appeal be is dismissed.

Chikowero J: ...................................................

Zhou J: .................................................................

I agree

T J Mabhikwa and Partners, appellant’s legal practitioners.

The National Prosecuting Authority, respondent’s legal practitioners.