Simbarashe Nyatsanga v The State

### Preamble
1
HMT67 -20
CA 14/20
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SIMBARASHE NYATSANGA  hh

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA and MUZENDA JJ

MUTARE 9 September and 8 October 2020

Criminal Appeal

V. Chinzamba, for the Appellant

M Musarurwa, for the Respondent

MWAYERA J: The appellant together with 3 co-accused were arraigned before the Magistrate Court Mutare facing a charge of contravention of s 368 (1) as read with s 368 (4) of the Mines and Minerals Act, [Chapter 21:05] “Prospecting for minerals without a permit or licence” the appellant together with another were tried and convicted after full trial while the other 2 co-accused were found not guilty and acquitted. The appellant and the co-accused whom he was convicted with were sentenced to 2 years imprisonment being a mandatory sentence. The appellant was dissatisfied by the conviction and noted an appeal with this court. In its amended notice and grounds of appeal the appellant raised 3 grounds of appeal from which the following issues fall for determination:

“whether or not the learned magistrate erred by rejecting appellant’s defence that he was arrested at Old Mutare bus stop along Mutare Honde Valley road. He denied ever being at the illegal mining site of Premier Central, a defence which was never disapproved by the state.

whether or not the learned magistrate erred by accepting and putting reliance on the evidence of the state witnesses whose evidence was not clear and satisfactory in each and every material respect.

Whether or not the learned magistrate also erred in his assessment of the guilty or otherwise of the appellant when it was not clear as to the circumstances of his arrest.”

As regards the first ground a close look at the record shows that appellant in his defence outline pointed out that he was arrested on his way home at a bus stop after he had sold some bananas. The appellant maintained this version even in evidence in chief and under cross examination during the defence case. The evidence of the appellant when viewed together with the two police details Perceval Munjere and Simbarashe Macheke creates doubt as regards the presence of the accused at the alleged scene of crime. Perceival Munjere under cross examination conceded that he could not describe the clothes which the accused including appellant were putting on but emphasised that the clothes were soiled. Later in evidence he stated that the appellant was putting on a t-shirt and shorts. He stated that this was at night and on realising the contradiction in failure to describe the clothes he shifted to state that he guarded the appellant and others until day light. Again there was no explanation of how the witnesses then failed to notice the clothes in day light. The witness ended up saying he did not check the clothes. The second state witness Simbarashe Macheke equally was non-committal on the outlooks of the appellant except to say the clothes were dirt and soiled. If he was able to ascertain the dirt at night then one wonders how he failed to describe the clothes. Considering the dragnet type of arrests effected during the operation it appears the court reached a conclusion based on assumptions by the state witness. Assumption that even though it was at night the clothes were dirt and consequently the appellant was prospecting for minerals. The question of identity was critical given the manner of alleged arrest and the appellant’s explanation. There is evidence on record that there was a mix up on arrest such that co-accused persons allegedly arrested with appellant were discharged upon realisation of the mix up. (P 28 of record of proceedings). The state witness accepted the mix up occasioning mistaken identity. When viewed holistically the evidence before the court from the state witnesses and accused persons leaves a lot of questions and gaps in the evidence relied on to discard the appellant’s version. This is basically because of the undisputed principle that the accused has no onus to prove his innocence whereas the state has the onus to prove the guilty of an individual beyond reasonable doubt. Section 18 (1) of the Criminal Code is instructive it states:

“(1). subject to subsection (2), no person shall be held to guilty of a crime in terms of this code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt --------

(4). except where this code or any other enactment expressly imposes the burden of proof of any particular fact or circumstances upon a person charged with a crime once there is some evidence before the court which raises a defence to the charge whether or not the evidence has been introduced by the accused, the burden shall rest upon the prosecution to prove beyond a reasonable doubt that the defence does not apply ------”

See State v Makanyanga 1996 (2) ZLR 231 and also R v Difford 1937 AD 370 at 373 were greenland J stated as follows:-

“No onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation even if that explanation be improbable, the court is not entitled even if the explanation be improbable, that court is not entitled to convict unless it is satisfied, not only that the explanation is improbable but that beyond any reasonable doubt it is false. If there is a reasonable possibility of the explanation being true, then he is entitled to his acquittal.”

It is settled in criminal matters once accused’s story is reasonably possibly true then the accused should be acquitted. In other words, once the facts and inference sought to be relied on are laid down for a conviction they must be proved beyond reasonable doubt, S v Mtetwa HH 63/15.

In the present case that dragnet type of arrests operation for suspected mineral prospectors lives room and chance for mistaken identity and gave room for heavy reliance on inference. Again the inference to be drawn from circumstantial evidence has to be tested. Such inference has to be the only reasonable inference to be drawn from circumstances. The threshold of proof has to be beyond reasonable doubt considering that the operation carried out involved dragnet approach it was riddled with uncertainties. Further that the state witnesses evidence was inconsistent as regards number of people arrested and where they were arrested. The appellant explanation that he was arrested at a bus stop after selling off his bananas cannot be said to be not reasonably possibly true. The witnesses were not really certain of the identity and clarity. The court a quo also fell into the danger of surmising and assuming that anyone arrested with dirty clothes was prospecting for minerals. In his judgement (p 12 of record) the learned magistrate remarked

“----- the accused’s clothes were dirt and soiled indication that they had been in the pits. The only reasonable inferences to be drawn from these circumstances is that they were illegally searching for gold -----”

Worth noting however is the fact that the clothes were not tendered as exhibits before the court. Similarly a shovel said to have been recovered which was produced before the court was spiritedly challenged by accused since he alleged the shovel was recovered from ZRP Premier where 2 other men have been arrested. Even sacks said to have been recovered at the scene were not produced. What emanates from the facts is that the exhibits were not produced neither was evidence adduced linking them to the appellant and commission of the offence. To this end again there was no proof beyond reasonable doubt on which the court relied on to come up with a conviction. The co-accused Walter Bande refuted having been panning for gold and he denied having been in the company of the appellant. His defence and evidence was clear that he was arrested on his way home from Old Mutare Business Centre and not along Mutare river. The evidence did not in any manner assist the state case but supported the appellant version that the two were not arrested together at a panning site. Considering the grounds of appeal raised by the appellant one can easily summarise that the three grounds speak to one thing, that the court a quo erred by relying on scanty and inconsistent evidence of state witnesses to find a conviction of the appellant. The evidence the court sought to rely on was not only unreliable and unsatisfactory but inconsistent leaving room and doubt as regards the appellant’s involvement in illegal panning. The court a quo fell into the era of accepting speculative evidence and convicted the appellant in circumstances where it was not safe to do so. There was danger of false incrimination considering the feasible dangers of mistaken identity.

Considering the appellant’s explanation which was not only probable but reasonably possibly true the court a quo erred in rejecting the appellant’s version. The accused has no onus to prove his innocence but the state has the onus to prove the guilty of an accused beyond reasonable doubt. Having regard to the totality of evidence on record the conviction was not justified. In the premises the conviction of the appellant was not properly anchored on evidence and it was unsafe. The appeal is meritorious.

Accordingly it is ordered that:-

The appeal be and is hereby upheld.

The conviction and sentence is set aside. Accused is found not guilty and acquitted.

MUZENDA J agrees __________________

Mugadza Chinzamba & Partners, Appellant’s legal practitioners

National Prosecuting Authority, Respondent’s legal practitioners