Tineyi Tavengwa v The State

### Preamble
1
HMA 38-20
CA 41-19
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TINEYI TAVENGWA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MAWADZE J AND WAMAMBO J

MASVINGO 23 OCTOBER, 2019 & 22 JULY, 2020

Criminal Appeal

N. Hlabana, for the appellant

Ms T. Matenga, for the respondent

MAWADZE J:  	On 23 October 2019 after hearing counsel we granted the following order;

“IT IS ORDERED THAT;

The appeal in respect of both conviction and the sentence be and is hereby dismissed”

We gave our detailed reasons for dismissing the appeal ex tempore.

At the material time the appellant was represented by Mr Hlabano of Messrs Hlabano Law Chambers.

Some 7 months later in May 2020 the Registrar referred to me a letter from Messrs Kachere Legal Practitioners who now purportedly represented the appellant. They requested that we provide written reasons for dismissing this appeal on 23 October 2019 in order for them to consider what they called “available legal options”.

Despite the long lapse of time which remains unexplained we nonetheless provide the requested reasons hereunder;

We also wish to place it on record that during the hearing of this appeal on 23 October 2019 we sought clarification from appellant’s counsel as to why a criminal matter which was heard by the Regional Magistrate sitting at Chinhoyi ended up having an appeal filed in Masvingo High Court some hundreds of kilometres away! Ordinarily one would have expected the appeal to be filed at the nearest High Court to Chinhoyi which is Harare High Court. No plausible reasons were given. While we are alive to the fact that as the current law stands a litigant can institute proceedings in Zimbabwe at any of the four High Courts at Harare, Bulawayo, Masvingo and Mutare, irrespective of the geographical location of the litigant or the cause of action common sense and transparency demand that a litigant should ordinarily use the nearest High Court. The reason for this is simple. It would be less expensive for the litigant. Forum shopping for judges would be curtailed. Such transparency would not lead to adverse inferences by the general public. The administration of justice is not put in disrepute by the casting of unnecessary aspersions. This is precisely the reason why I have personally advocated for legislative intervention to curb this unfortunate practice. As this appeal had already been set by the Registrar we nonetheless proceeded to dispose of it in order to avoid the attendant inconveniences to the parties.

We now turn to the merits of the appeal.

The appellant was convicted after a trial of the offence of robbery as defined in s 126 (1)(a) of the Criminal Law (Codification and Reform) Act [Cap 9:23] by the Regional Magistrate sitting at Chinhoyi.

The relevant charge is that on 13 February 2019 and near Murombedzi growth point the appellant robbed Nqobizitha Gatawa using a firearm of 373 g of gold and US$40. The appellant was sentenced to 7 years imprisonment of which 2 years imprisonment was suspended on the usual conditions of good behaviour. A further 18 months imprisonment was suspended on condition appellant paid restitution in the sum of US$16 000 to the complainant on or before 19 August, 2019 through the Clerk of Court at Chinhoyi. The appellant was sentenced on 20 May, 2019.

Dissatisfied with both the conviction and sentence the appellant filed a notice of appeal with this court on 24 May, 2019.

The grounds of appeal both in respect of the conviction and the sentence are clumsily drafted and repetitive. All the appellant contends in the six grounds of appeal in respect of the conviction is that the court a quo misdirected itself when it believed the State’s version of events rather than that of the appellant and that the threshold of proof beyond reasonable doubt required in criminal matters was not attained.

The grounds of appeal in respect of the sentence simply regurgitate what the appellant said in mitigation and the appellant pleads for a non-custodial sentence, preferably community service!

The bare bones of this matter are as follows;

The then 41 year old appellant resides at No. 20767, Full Pastures, Chinhoyi and is a self-confessed gold panner or artisanal miner.

The then 30 year old complainant resides at No. 3 Wattle, West View in Harare. He is a licenced gold buying agent, under the auspices of a company called Belhara (Pvt) Ltd domiciled at No. 10 Quinton Road, Greystone Park, Harare.

The facts found proved by the court a quo are that on 12 February, 2019 the appellant acting in common purpose with Daniel Pfavari, Ngonidzashe Gwerendende and other two accomplices at large known as Biggie and Chanakira hatched up a plan to rob the complainant exploiting the previous acquaintance complainant had had with one Chanakira. This plan was put in motion when Chanakira telephoned the complainant offering to sell the complainant 300g of gold. The complainant took the bait. Chanakira then deviced an excuse that he had other commitments and linked up the complainant with the appellant telephonically. Thus the complainant started to communicate with the appellant.

The complainant then met the appellant at Murombedzi growth point on 13 February, 2019. The appellant was in the company of Daniel Pfavai, Ngonidzashe Gwerendende and one Biggie. They were using a Toyota Wish vehicle Registration No. AEW 4596 driven by one Tinashe Gandawa. The complainant was driving a Jeep Patriot vehicle Registration No. AEX 0648 and was in the company of his friend Tafadzwa Michale Usorwe.

The complainant was then lured from Murombedzi growth point under the pretext that such a transaction could not be carried out under the prying eyes of the people at the growth point. The appellant and his two accomplices got into the complainant’s motor vehicle and they drove towards Norton for about 1 to 2 km. The complainant was driving and the appellant was occupying the front seat with his accomplices in the back seat with complainant’s friend.

The complainant’s motor vehicle then stopped and appellant sold the complainant 373.99g of gold nuggets at US$15 960. The complainant who had a pocket scale took possession of the gold and paid the appellant US$15 960. At that point the appellant drew a pistol from his jacket, pointed it at the complainant demanding his gold back. Terrified by these threats the complainant obliged and surrendered the gold plus US$40 to the appellant. The complainant and his colleague were further threatened and ordered to drive off. The appellant and his accomplices disembarked from the complainant’s vehicle and fled in the motor vehicle driven by Tinashe Gandawa. All in all the complainant lost cash amounting to US$16 000.

There are no major factual disputes between the appellant and the complainant. Most of the facts are not in issue (see page 37 of the record) where items (ii) and (vii) were admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Cap 9:07]. The only material dispute is whether a robbery occurred.

The appellant’s basic defence is that he indeed engaged in a sale with the complainant. According to the appellant he sold the complainant 453g of gold at US$30 per gram but the complainant who did not have sufficient cash only paid US$9 060 which is an equivalent of 302g and undertook to pay for the balance of 151g the following day. According to the appellant he amicably parted ways with the complainant! It is the appellant’s contention that the complainant, in a bid to evade his contractual obligations started to allege that he had been sold fake gold by the appellant and fabricated these robbery allegations.

There are no discernible legal issues which arise in this straightforward matter. The dispute before the trial court was whether the complainant was robbed or the parties engaged in a business transaction from which the complainant now tries to extricate himself.

The State’s case is based on the evidence of the complainant and his friend Tafadzwa Michale Usorwe. The appellant testified and called Tinashe Gandawa as a defence witness. The extract of the telephone calls between the complainant and the appellant on the relevant days was produced to show the call history.

The narrow issue which this court is to resolve is whether the court a quo misdirected itself in accepting the version of events given by the State and rejecting the appellant’s version of events.

A proper and sober analysis of the testimony shows that the complainant gave a detailed account of how the robbery was executed. The complainant explained how his acquaintance Chanakira linked him to the appellant culminating in the meeting between appellant and the complainant at Murombedzi growth point on the day in issue. Thereafter the complainant detailed how he was lured from the growth point in the comfort of his own motor vehicle. He gave details of the quantity of gold he bought being 373 g at $42.6 per gram and that the agreed on a round figure of US$15 960. The complainant explicitly explained how he paid the appellant the US$15 960 which he said was in US$10 denomination of US$5 000 bundles known in their parlance as “bricks”. He said he paid “3 bricks” which is US$15 000 and that as he was counting the balance of US$1 000 in order to give the appellant US$960 when all hell broke loose.

In relation to the manner the robbery was executed he said the appellant suddenly pulled out a fire arm from his jacket. It was pointed at him. He was terrified. He said the appellant demanded the gold back plus the US$1 000 which the complainant had. Due to fear he complied. He said he was ordered to drive off lest he will be harmed or killed. The appellant and his gang got off his motor vehicle and he sped off towards Norton with his friend.

Thereafter the complainant explained the action he took. At that point he did not know that his acquaintance Chanakira was part of this whole plan. He thus telephoned Chanakira advising him of the robbery and inquiring why Chanakira linked him with robbers. Chanakira in turn took the complainant along the proverbial garden path by faking being surprised feigning all sympathy and ignorance. Chanakira advised the complainant to drive to Kadoma in order to meet Chanakira who alleged he was driving from Sanyati in order to resolve the problem and possibly reverse the complainant’s loss. The complainant foolishly took the bait and proceeded to the rendezvous in Kadoma and Chanakira never pitched up. Instead Chanakira’s telephone had been switched off. It then dawned upon the complainant that he had been played up. He made a report at Harare Central but police advised him that it was proper for him to make the report at ZRP Murombedzi which he did on 15 February 2019 after raising enough money to travel.

Nothing in our view turned on the cross examination of the complainant who stuck to his clear account. Probably this explains why counsel for the appellant dwelt on issues not in dispute. The complainant dismissed the appellant’s version as totally false.

The complainant’s testimony was well and materially corroborated by his friend Tafadzwa Michale Usorwe. He confirmed the seating arrangement inside the complainant’s vehicle prior to the robbery. To his credit he was candid with the court that initially he was busy on his mobile phone as the appellant and complainant exchanged the gold and the cash. His attention was drawn when the appellant demanded his gold back raising his voice. At that point he saw a firearm pointed at the complainant. The complainant obliged. They were ordered to drive off as appellant and his colleagues disembarked. All he witnessed was the exchange of “3 bricks” in US$10 denominations. It is therefore clear that he materially corroborated the complainant on how the robbery was executed. The suggestions made to him that he was not in complainant’s motor vehicle are at least ridiculous and far-fetched. This was in broad day light and he could not have failed to see what happened.

The court a quo rightly rejected the appellant’s version of events as false. This finding cannot be faltered as the appellant was indeed a very poor witness.

The appellant later in his evidence sought to allege that the transaction happened in the Toyota Wish motor vehicle and not complainant’s vehicle. He sought to introduce new facts alleging that the complainant brought some mercury to purify the gold ore he had before the transaction and that complainant had agreed to buy gold which was yet to be purified.

Indeed the appellant had problems in explaining the whereabouts of his colleagues whom he said were also owners of the gold he sold to the complainant. Worse still the call history he produced showed that he last communicated with the complainant on the date of the said robbery. The mind boggles as to how he then alleges the complainant thereafter became evasive and unwilling to pay the said balance. The appellant even sought to allege that the complainant had three other people who remained at the growth point.

It is clear to our minds that the appellant seemed to build his case as the trial progressed.

Tinashe Gandawa was just a hired gun who is possibly an accomplice. The Toyota Wish he drove was not his. He possess no driver’s licence. He is a self-confessed tout at Banket bus terminus. His role was very opaque. He even lied that as complainant left the complainant was so happy that he bought beer for Tinashe, appellant and their accomplices (see page 86 of the record). In all fairness his testimony is patently false and of no use to the appellant’s case.

At the end of the day we find no misdirections on how the court a quo analysed the evidence presented. The judgment by the learned Regional Magistrate is very lucid and well-reasoned. It would be ridiculous to believe that the appellant took crushed gold ore to Murombedzi growth point for purification and that complainant would travel all the way from Harare to buy such gold without even appreciating its quantity. Further, if the complainant was to bring the mercury to purify the gold ore how was this to be factored in the price of the gold?

The complainant’s evidence is clear and straight forward. The improbabilities of the appellant’s version are well articulated. Appellant gave no details as to how the said balance was to be paid and where. He did nothing to claim the so called balance until his arrest. The court a quo correctly found facts not in issue and properly identified the factual dispute. The factual dispute was resolved in the complainant’s favour. Cogent reasons were given. Clear reasons were given for rejecting the appellant’s version.

The appeal against the conviction clearly lacks merit.

In relation to the sentence counsel for the appellant was at pains to point out any misdirection on the part of the court a quo.

The appellant’s personal circumstances were considered and that no physical harm was occasioned to the appellant. This was properly juxtaposed with aggravating factors which include inter alia the serious nature of the offence, the use of a fire arm and the trauma caused to the complainant. This was a gang offence involving premeditation and pre planning. Actual prejudice of a substantial amount of foreign currency was involved amounting to US$16 000. The appellant benefitted from his criminal enterprise and he was rightly degorged of such benefit in the sentence imposed.

In the heads of argument Ms Matenga cited a number of cases relevant to appropriate sentences imposed in cases of this nature. The prayer by the appellant to be sentenced to community service for such an offence is sheer mischief which deserves no further comment.

Our conclusion therefore is that there is absolutely no misdirection by the court a quo both in respect of the conviction and the sentence. There is nothing inherently improbable in how the robbery was executed. The sentence imposed meets the justice of the case.

It is for these reasons that we dismissed the appeal both in respect of the conviction and the sentence.

Wamambo J . agrees …………………………………………………………………….

Hlabano Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners