Tonderai Samu and Others v The State

### Preamble
1
HH 712-22
CA 57/19
---------


TONDERAI SAMU

and

ELISHA BENJAMIN

and

WONDER ZUZE

and

PATRICE DANDAJENA

and

BEVERLY MUREYA

versus

THE STATE

HIGH COURT OF ZIMBABWE

ZHOU and CHIKOWERO JJ

HARARE, 29 September & 17 October 2022

Criminal Appeal

IT Gonese, for the appellants

T Mapfuwa, for the respondent

CHIKOWERO J:

1.	This is an appeal against conviction and sentences imposed on the appellants on a charge 	of obstructing or endangering the free movement of persons or traffic as defined in s 38(c) 	of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ( the Criminal Law 	Code).

2.	Each appellant was sentenced to 6 years imprisonment of which 2 years imprisonment was 	suspended for 5 years on the usual condition of good behaviour.

3.	The trial court found that the first, second, third and fifth appellants had acted in common 	purpose with those demonstrators who, in Mvurwi Town, had unlawfully and intentionally 	obstructed or endangered the free movement of persons or traffic by placing bins, pipes, 	poles and stones on the road.

4.	The trial court found that they were numbered among a much larger body of demonstrators.  	Some of those demonstrators had placed the bins, pipes, poles and stones on the road.  The 	four, even though they had not themselves placed these obstructions on the road, were 	liable as co-perpetrators in terms of s 196A of the Criminal Law Code.

5.	Six other accused persons were found not guilty and were acquitted at the close of the case 	for the prosecution.  This was pursuant to the prosecution withdrawing the charge against 	them at that stage.

6.	Gide Dominic, who was the third accused, was found not guilty and was acquitted at the 	conclusion of the trial.

7.	The fourth appellant, who was the seventh accused, was convicted on the basis that the 	fifth, sixth and seventh state witnesses were credible witnesses.  These three witnesses, 	who were police officers, testified that they saw the fourth appellant barricading the road 	by picking up bricks and smashing the same onto the road.  For good measure, the seventh 	State witness testified that he also saw the fourth appellant ordering some juveniles to 	barricade the road.  He said the appellant was wearing a grey CAPS United T Shirt.  CAPS 	United is a well-known football club currently playing in the Zimbabwean Premier League. 	We think that judicial notice can be taken of this fact.

8.	The three witnesses testified that they could not have mistaken the fourth appellant for 	somebody else.  They already knew him as a Mvurwi resident.

9.	The respondent filed heads of argument opposing the appeal against the conviction of all 	the appellants.

10.	However, Mr Mapfuwa commenced his oral submissions by conceding that the conviction 	of the first appellant was erroneous.

11.	Further, after interacting with the court, he closed his submissions by conceding that the 	trial court erred in convicting the second, third and fifth appellants.  He gave reasons for 	taking that view.

12.	We are satisfied that the respondent’s opinion in conceding the appeal against conviction 	in respect of the first, second, third and fifth appellants is sound.

13.	As regards the fourth appellant, we agree with Mr Gonese that the trial court should have 	acquitted the former for the same reasons that it acquitted the third accused.

14.	In finding the third accused not guilty the trial court found that the three police officers 	were not credible witnesses.  These were not only the same but also the only State witnesses 	who testified against both the third accused and the fourth appellant.

15.	The third accused, a local ambulance driver known to the witnesses in question explained 	that he was not at the scene of crime.  In other words, he said that the three police officers 	were not being truthful in claiming that they saw him in the company of the fourth 	appellant as both smashed bricks onto the road.

16.	The third accused explained that he was only arrested the following day on appearing at 	the police station to lodge a report.  He had spent the previous day at his aunt’s place.  To 	disperse the demonstrators, the police had discharged a tear gas canister into his aunt’s 	residence. The smoke badly affected the children at that residence. This infuriated the 	third accused.  He decided to file a report against the police at the local police station.  The 	three witnesses were traffic police officers who not only knew the third accused so well 	but also worked with him such that they should have promptly arrested him at the scene of 	crime if he, in the company of the fourth appellant, had hindered or obstructed the free 	movement of persons or traffic by smashing bricks onto the road.

17. 	In a bid to weaken the third accused’s report against them, the police capitalized on his 	appearance at the police station to arrest him for an offence he never committed. His 	defence was essentially an alibi.

18.	The trial magistrate found that the three police officers were not credible witnesses. It	found that no explanation had been tendered for not arresting the third accused at the scene 	of the crime if indeed he was present and they saw him committing the offence.  She found 	that his explanation was reasonably possibly true.

19.	The fourth appellant was a Movement for Democratic Change (MDC) activist.  The MDC 	is a political party.  He denied being at the scene of crime.  In other words, he said that the 	three police officers were not telling the truth in asserting that they saw him in the company 	of the third accused at the scene as both threw bricks onto the road.  The police only arrested 	him because of his political activism.  They thought that the demonstration (which is not a 	crime) was organized by the MDC.

20.	It seems to us that the fate of the fourth appellant, at the trial, was inextricably linked to 	that of the third accused.

21.	In finding that the three police officers were not credible witnesses in acquitting the third 	accused, the trial court, without realizing it, was effectively acquitting the fourth appellant 	as well.  This is so because the evidence of the three witnesses indicated that the two were 	together, committing the offence in the same manner and at the same time.  Since the three 	witnesses all testified on the same incident involving the pair, the trial court fell into error, 	on our reading of the record, in effectively finding that the same witnesses were both 	credible and not credible.  Not credible on the same evidence only in respect of the third 	accused, but credible on the very same testimony in respect of the fourth appellant.  There 	is no evidentiary basis for such a distinction because the three witnesses never drew it.

22.	We observe also that the Trial court did not comment on the turn-around in the testimony 	of the seventh State witness. Having testified in examination in chief, that the fourth 	appellant was adorning a grey CAPS United T Shirt at the time of the commission of the 	offence, the witness then contradicted himself. We take judicial notice of the fact that 	CAPS United, a football club in the Zimbabwean Premier League, has green and white as 	its principal colours. Under cross examination, he said the appellant was wearing a green 	and white CAPS United T Shirt. This speaks to the identity of the person, if any, seen 	smashing bricks onto the road. There is reasonable doubt that such person, if at all 	he existed and acted in the manner ascribed to him, was the fourth appellant. Grey is so 	different from green and white that we wonder how the former could be mistaken for the 	latter. In any event, the witness was not re-examined to explain the variance.   The offence 	was committed in broad daylight.

23.	In all the circumstances, therefore, the conviction of the fourth appellant will be vacated.

24. 	In the result, the following order shall issue:

1.	The appeal against the conviction of the first, second, third, fourth and fifth 			appellants be and is allowed.

2.	The conviction of the first, second, third, fourth and fifth appellants is quashed and 		the sentence imposed upon each set aside.  The following is substituted:

“Accused one, two, four, seven and twelve are found not guilty and are acquitted”.

CHIKOWERO J:……………………………………………..

ZHOU J:  Agrees……………………………………………

Lawman Law Chambers, appellant’s legal practitioners

The National Prosecuting Authority, respondent’s legal practitioners