The People v Solomon Sinfukwe (SSJ/ 17/ 2017) [2023] ZMSUB 3 (23 March 2023)

IN THE SUBORDINATE COURT OF TIIE FIRST CLASS CASE NO: SSJ/ 17/ 2017 FOR THE CHIPATA DISTRICr HOLDEN AT CIIIPATA (CRltvflNAL JURISDICTION) BETWEEN THE PEOPLE V SOLOMON SINFUKWE BEFORE: MAGISTRATE B. MWIINGA ,1r. f'i\R.' b . l~\v.:'.1\1<. A FOR TI IE STA TE: MR. M. MA YEMBE, MS. B. P.lYAMllE AND MRS A. K. BENTO - ANTI CORRUPTION COMMISSION FOR ·nm ACCUSEDS: MR. J. PIHRI- MESSRS JMP AS SOCIA TES JUDGMENT STATUTl~S IU~FRRRED TO: PENAL CODE CAP 87 OF THEL A WS OF ZAMBIA CASRS REFERRED TO: CHAN MAN-SIN V. A-G OF HONG KONG (1988) 1 ALL ER 1 PCI GASTOVE KAPATA V. THI~ PEOPLE (1984) Z. R 47 (S. C) SIMANGO V. Tlrn PEOPLE (1974) Z. R. 198 (S. C) THE PI~OPLE V. MABUBA (1972) Z. R. 21 (11. C.) The accused person stands charged with I count of Theft by Public Servant contrary to section 272 and 277 of the Penal Code CAP 87 of the Laws of Zambia. The particulars of the offence arc that U1c accused person on dates between the 1st day of January, 2012 and the 3 I st day of December, 2012 at Chipata in the Chipata District of the Eastern Province of the Republic of Zambia, being a person employed in the public service as an bxccutivc officer at the Ministry of Mines, Energy and Water Affairs Development did steal four (04)"~~ntainers altogcilicr valued at Kl 00, 000.00 the property of the Republic of Zambia. When called upon to plead, he denied the charge. I warn myself at the outset U1at the onus of proof is upon ilic prosecution to prove the accused guilt beyond all reasonable doubt and there is no onus on the accused to prove his innocence. The accused is entitled to give and call evidence or say nothing at all and if he elects to say noU1ing this docs not affect ilie burden on the prosecution. If, after consideration of all the evidence there remains a doubt on my mind as to his guilt then that doubt shall go to his benefit Theft by Public Servant is contrary to section 277 of the penal code CAP 87 of the Laws of Zambia and the law provides that; "If tfte offender is a perso11 employed ill tfte public service and tlte thing stolen is tlte property of tlte Govemment, a local authority or a co1poratio1t, body or board, illcluding an institution of i,igl,er learning in wltic/1 the Govemme11t ltas a majority or controlling interest, or came into Iris possession by virtue of his employment, Ire is liable to imprisonment for fifteen years. " And theft is de.fined in section 272 of the same code which states that; ''Any person wfto steals anything capable of being stolen is guilty of t/refelony termed "t/reft", and, unless owing to the circumstances oft/re theft OI' the nature of the thing stolen some other ptmishme11t is provided, is liable to imprisonment for five years." The clements of the offence arc found in section 265 ( 1) which states that; "A person wlto fraudule11tly and without claim of right takes auytlting capable of being stolen, or fraudulently converts to the use of a11y person other titan t/re ge11eral or special owner thereof anytl,illg capable of being stolen, is saitl to steal that thing. " J 2 ·- In order to sustain a guilty verdict, the prosecution must prove beyond all reasonable doubt that; 1. The accused person is/was employed in the public service as an Executive officer, 2. That he stoic 04 steel containers, 3. 'lbat the said containers belonged to the Republic of Zambia, 4. That he had no claim of right and that he acted fraudulently, The prosecution called 09 witnesses in total and the evidence in summary is as follows; PWl was Stoykc Ulrich who testified that he worked for a company called IBO which was under the department of water affairs as it was called then. Ile stated that he was the manager for JBG and the san1e started in 1998 until September 20 11 . PW 1 told court that at the end of the project, the equipment they used as a company was handed over to the department of water affairs in Chipata District. The equipment which was handed over included office furniture, project materials, spare parts, boreholes, the building they used during the stay, a small water tank and 22 old containers. The witness stated that he prepared a hand over summary list which he identified in court and was marked ID 1 and later produced as P 1. The witness said after the list was prepared and the things were handed over, he had no control over the things. When cross examined, the witness stated that according to Pl on page 4, the 22 containers were written off for disposal and that he was the one who was supposed to do that but he handed everything over. He stated that the containers were in a bad condition and that they had no serial numbers. The witness admitted that the report had no mention of the colors or sizes for the container. PWl stated that the company constructed 04 houses in Kanjala area and that he was not aware that the same were sold off to sitting tenants or that the accused was also a sitting tenant. PW2 was Evans Mulcnga who testified that he was the senior water engineer at the department of water resources which was known as water~-'rn the past. He told court that he was employed in 1993 but that he came to Chipata one year ago. He stated that when he reported for work, he was under the supervision of Charles Chanda who was the provincial water development officer. The witness stated that when Mr. Charles left the office on 5th January, 2021 he left hand over notes for him as the new in charge. The witness identified the notes which included staff welfare, inventory of assets for rural water supply, an audit report for assets at J3 JBG, programs and projects lo be undertaken. The witness said under the reports, there were motor vehicles - both runners and non -runners, 22 metal containers and office furniture. PW2 stated that under staff welfare, there was a pending case for Solomon Sinfukwe which he was to take over and that the said Solomon was a permanent and pensionable employee. He testified fu11her that under the audit report dated 2nd September, 2011, there were 22 containers valued at K25, 000 each. The handover notes, inventory report and an audit report and these were marked ID2 to ID4 respectively. The witness told court that as a ministry, they were responsible for disposing of government property and also that any property handed over lo the ministry was numbered. He told court that only 09 containers were remaining according to the inventory report. When cross examined, the witness stated that he took up the position as the in-charge in January 2021 and that he was aware that the alleged offence was committed in the period January 2012 to December 2012. He told court that disposal of government property was done by the Ministry of works and supply and that each property received by the government is marked by the said department. He admitted that the said containers had no marks on them and that he did not refer to any serial numbers on the same. The witness said Ministry of Finance was responsible for attaching value to government property but he was not aware of any value attached to the said containers by any ministry. PW2 stated that he was not aware of the date when the containers were purchased or even what happened to the ot houses that were built in Kanjala compound. The witness said the houses were offered to the sitting tenants and the accused was one of the sitting tenants but he testified that he did not know that containers were also given to the sitting tenants. PW2 stated that according to the audit report, there were supposed to be 22 containers but that only 09 were available. PW3 was Anderson Sakala whose evidence was that he was a businessman and that he had a hardware shop and 04 steel containers with building materials at Kapata market. He stated that in 2012 he bought steel containers and the same was done through Mr. Ngoma who worked at JBG. lie said Mr. Ngoma told him that someone was selling an empty steel container and that the container did in fact belong to the said person. PW3 stated that he was interested and so the container was taken to him at Kapata market and it was moved in a 5 tons truck belonging to JBG. He told court that he gave Mr. Ngoma KS, 000 for the 20 foot maroon container. In the J4 same month, Mr. Ngoma approached him again and said there was another person that was selling a steel container at K8, 500 which after ncgotiatio[!s, was reduced to K8, 000. The witness said the container was delivered to his house and he gave Mr. Ngoma a K7, 500 leaving a balance of KS00 which Mr. Ngoma said should be given to Mr. Sinfukwe whose contact number he was given. The witness told court that around 18:00 hours that day, Mr. Sinfukwe called him and they met by the mosque at downshops and he paid him the KS00. He stated that he did not sec his face because it was dark at the time. PW3 testified that he was surprised in 2014 when he was called by the Anti- Corruption Commission (ACC) who inquired about the containers and he gave his statement. The witness stated that the two containers were at his shop but at the time of buying, one was delivered to his shop while the other was taken to his house in Damvicw area. The witness told court that he painted both containers blue and that at the time the containers were delivered; Mr. Ngoma was in charge of the trucks at the department of Water affairs. At the scene, the witness stated that the containers had serial numbers and that one had a plate while the other had no plate. I le stated that the containers were in the same good state from the time he purchased them. PW3 testified that he paid the KS00 to Mr. Sinfukwc and it was for the blue container. The other container was not painted but he was using it as well. The witness identified both the blue and maroon containers and they were marked IDS and 106 and later produced as PS and P6 respectively. During cross examination, the witness stated that the containers were still in his care and he painted them blue. He told court that ACC only took pictures of the containers together with the serial numbers and he was told not to sale them or even temper with the serial numbers. The witness said the truck that delivered his containers belonged to JBG but was used by the department of water affairs and Mr. Ngoma was the driver. He stated that he could not remember the person who received the monies for the hired truck. PW3 told com1 that both containers were in a good state, he was using them and that they had no holes on the roofs. PW4 was Timothy Banda whose evidence I will consider with caution as he was in court during the proceedings. He testified that he worked at water affairs as a security guard and that his job included guarding the property namely; the steel containers, vehicles and other things that were on the premises. He told court that he worked with Mirriam Banda, William Banda, Maganizo Moyo and Geoffrey Mwanza and that at the time Mr. Ngoma was the driver while Mr. Solomon J 5 Sinfukwe was an Executive officer. He told court that he never worked with PW2 because he lcfl the department in 2014. The witness testified that in July 2012 his boss Mr. Lombe (deceased) got a steel container from IDG offices and he went with it to Livingstone as he used it to move his property after he was transferred. I le stated that the container was never returned to the office. He stated that in September 2012, Mr. Lombc died and that it was after his death when he Mr. Ngoma visited the premises at water affairs with a trnck and he called Mr. Sinfukwe who asked to talk to him. He testified that Mr. Sinfukwc instructed him to give Mr. Ngoma 03 steel containers and that as instructed the 03 containers were released and loaded on a crane one by one. The witness stated that they had 22 containers at JBG while 02 were at Mduwi dam. PW4 testified that 2 months later, he discovered that 08 containers were missing and that the occurrence book were he indicated all activities had some pages missing and he concluded someone must have stolen them. 'l11c witness told court that when the tlu·cc containers were released, he indicated in the book but even those pages were removed. The witness identified the accused person as the man who instructed him to release 03 containers to Mr. Ngoma. And when cross examined, the witness stated that he had his letters of appointment and that it was not the accused person who wrote his letter of termination but it was done by Mr. Btian Kalinda approved by Charles Chanda. The witness admitted iliat the accused as an executive officer looked at the welfare of the workers and that it was true he went to several offices complaining that the accused was the one who caused his termination. IIe admitted being bitter about the whole ordeal and he labelled the accused a very bad man. PW4 stated that he was never paid benefits because he was a casual worker only and that he was never told the reason he lost his job, PW4 testified that he worked under water affairs and not JBG and that they had an occurrence book at work but the pages containing what happened to the containers were torn out. The said book was left with the guards that remained at water affairs and that over the torn pages, he told the provincial water engineer and not the police. The witness stated that he did not know where the containers were taken but he was told to release them to Mr. Ngorna. I le said the crane with registration number ALK 9385 that moved the containers was driven by Davy and he admitted that he never reported the issue to the police. I le testified that he did not know the serial numbers for the three containers but that he indicated everything in the occurrence book. PW4 J 6 stated further that he once visited Mr. Lombe' s house he had purchased from JBG and that he saw 02 containers there. The witness said by the time he was employed, the said two containers were already at Mr. Lombe's premises and that he did not know what Mr. Lambe did with the same. In Re- examination, the witness stated that he was bitter with the accused person but he was not there to fix him. He admitted that when his employment was terminated, he assured the accused they would sec each other in court. PW3 said he was never promised a job by Mr. Chanda if he testified against the accused and also that he never reported the 03 containers leaving the premises because he was instructed by the boss- the accused person. PWS was }>a trick Mulcnga Musonda who testified that in 20 12 while he was staying in Chipata District, he had a timber business at Kapata market. And that in September 2012, the accused person called him and told him to go to Shantemba near VNT motel. He went there and found the accused person who was with his friend, a driver by the name of Mateyo Ngoma. I le stated that the accused told him he was selling some steel containers and when asked where he got the same, the accused told him that he was the boss at Jl3G. The witness testified that he was interested in the same and so he asked how much they were being sold at. The accused told him each was going at KlO, 000 but after negotiations, the accused accepted to sell him at K9, 000. The witness said the container was delivered to his shop at Kapata market in a yellow vehicle belonging to JBG. A letter of sale was prepared by the accused and they both signed it and he paid the accused the sum of K9, 000. The witness identified the letter of sale which was marked ID7 and later produced as P7. PWS stated that the grey container was still at Kapata market and cement was being sold from there (witness referred to P6). Ile told court that he sold the container to his friend Chrissy Mvula at K9, 000 before he relocated to Lusaka. PWS testified further that his friend Lubasi from Mfuwe also needed a container and so he called the accused who sold him another container on behalf of his friend ~~~ He identified the accused person as the man who sold him two containers and that at the time, the accused and Mr. Ngoma both worked at JBG. He told court that the accused was the one who instructed people to load and offload the containers from the truck while Mr. Ngoma was the one who drove the truck with the crane. J7 During cross examination, the witness stated that he did not recall telling the court that the above events occurred in 2012 but that it all happened in 2013. Ile stated that it was not his first time to meet the accused person but in September 2013, he met the accused at Chantcmba so they could discuss business. The witness said the accused worked at JBG and according to what the accused said, the boss was a white man while he was the second in charge. He admitted that in examination in chief, he said the accused said he was the boss at J BG but this was because the whole incident happened a long time ago and he could not recall everything exactly how it happened. The witness told court that he knew the accused person and that he would not buy something from a stranger. He stated that it was not Mr. Ngorna who introduced him to the accused as Mr. Ngoma was just there as a witness. The witness testified that he was present both when the container was loaded and offloaded off the yellow truck. PW5 admitted that there was no mark on the container to show that it belonged to the government of Zambia and that it was true that there were a lot of containers around and people sell and buy them easily. PW5 told court that he never visited JBG premises but would sec the branded vehicles belonging to JBG and that the accused used some of the employees from the said company to load and offload the container. He admitted he never showed the letter of sale for the second container and also that he never stated that date the same transaction occurred. The witness said he was never told that JBG containers were wom off or that they had holes everywhere. PW6 was Sharpson Mumba whose evidence I also received despite him being in the courtroom while PW5 was being cross examined. He told court that he was an engineering assistant at the department of water and resource!$ development. I le stated that before he joined the department on a full time basis, he worked with them on a contract basis between 2011 and 20 l 2 and that he used to work from Mduwi dam as a supervisor. PW6 testified that between June 2012 and September 2012, he was looking after the materials at the site and these included 02 steel containers- both maroon in color. He stated that the containers were used to store materials such as cement, wheelbarrows and shovels. One of the containers had holes on the bottom and so they placed planks on the bottom. During the course of working, the accused person who was an executive officer visited the scene to check on how everything was going and that he also asked for one container. The witness said the accused was with two other people he did not know but J 8 I I he said the container was needed for a project in Lundazi. The accused was shown the container that had a worn out base and he told hi~would pick it later. A few days later, Mr. Ngoma visited him and asked if the accused had been there and he told him about the container which the accused asked for. The witness said Mr. Ngoma said he was sent lo pick the said container by the accused and he had a blue pan truck which had no registration number. /\nd according lo him, the container was being taken to Lundazi. PW6 testified further that after the container was collected, Mr. Kayuni a waler engineer visited the site and asked where the other container was and he told him that it was the accused who asked for it so it could be used in Lundazi. The witness said when he started working from Mduwi, the containers were already on the site. I-le identified the accused person and he told court that the said containers belonged to the department of water affairs. When cross examined, he told cou1t that the containers belonged lo the dcpartn1cnl and were placed on the site for a reason. Ile staled that he was never given an inventory or document lo show the same belonged to the department. The witness testified that he was a casual worker but that he signed contract with the department. Ile slated that he never prepared a hand over note for the container the accused got but that the other workers who were on site could be his witnesses. I Ie lold court that the accused used to visit the site for payroll things but on that date, he went with two other people and he was nol there for the welfare of the workers. The witness did not know the other two men and he never described them to the court. PW6 stated that Mr. Kayuni never asked him to write a report over the container the accused person got. He told court that he was currently a full time employee and the same was not a reward so he could implicate the accused in the case. The witness said he did not know Mr. Lombe bad a lot of containers at his house but that he only saw one container there. PW7 was Christopher Mvula whose evidence was that he was a business man and that he sold Timber al Kapata market. He told court that he kept his merchandise in a maroon container that was at Kapata market and he bought the same in 2012. PW7 testified that his friend Patrick Musonda (PWS) was the one who sold him the container and that when he went to check on the container, he found two, one grey and another maroon. The witness slated that he bought the maroon container at K9, 000 but it was not moved from the place where PWS had placed it. When PW5 moved to Lusaka, he called the witness and asked if he was interested in buying the J 9 grey container that was next lo the maroon one he bought earlier. PW7 testified that he had no money but asked PW5 if he could use the container and that he would pay rentals for the same. the agreed rent was K 1, 500 and so he started using the container. Less than a month later, PW5 called him and told him that he sold the container and that the buyer would refund him the Kl , 500. The very day, Mr. Lubasi called him and said he was there to pick the container he bought from PW5 . Mr. Lubasi gave him the Kl, 500 and the container was collected. The witness stated that he did not know where the container was but Mr. Lunbasi told him that he was taking it to Mfuwe and this was in 2013. He told court that he did not know where PW5 got the same containers but he identified his container (Refcned to P6). During cross cxan1ination, the witness told court that PW5 never told him at the time he bought the container that it was not his or that he bought it on behalf of his f1icnd who was in mfuwe. He told court that PW5 never told him that when he bought the grey container, he swapped it with the maroon container which he kept as his while Mr. Lubasi got the grey one. He told court that was only given a copy of the letter of sale between PWS and the seller but that he had no letter of sale between PWS and himself. PW8 was Brian Mbcwc the arresting ofliccr in the case. I le testified that ACC office Chipata received a report of alleged theft of steel containers for the department of water affairs under the ministry of energy and water development. The details of the report were that Solomon Sinfukwe stoic some steel containers from the said department which he sold to some businessmen and other unknown people. Having been assigned to investigate the case, he interviewed individuals who worked for the dcpai.1ment namely; Timothy Banda- security guard, Mateyo Ngoma- crane ~\,,o .. -.f> tel\ driver, Shaq,aon Mumba- foreman at a construction site at Mduwi dam, Mr. Chanda- Provincial water affairs officer, Mr. Stoykc- project manager for Gulf engineers (JBG), Mr. Victor Ilamwala - internal auditor at the ministry or energy and water development based in Lusaka. The witness stated that he spoke to Patrick Musonda- a business man and Anderson Sakala. PW8 told court that Mr. Stoyke told him that at the end to their project, they handed over equipment to the department and among the things handed over were 22 steel containers. He stated that he was availed the contract and the inventory report for the same project. The witness identified the report in court (Pl). When he interviewed Mr. 1-Iamwala (now deceased) and Mr. Modest Musonda also an auditor, he established that an audit exercise was conducted and it JlO *<"' revealed that assets were handed over to the department by JBG but 11 out of the 22 containers were missing and that one of the containers was moved to Livingstone by Mr. Lombe. He also told court that he was availed a copy of the audit report dated 21 st April, 2014 which he identified (Referred to ID4). The said report helped him inquire more into the matter and so he interviewed Timothy Banda (PW4) who told him of containers were picked from JI3G premises by Mateyo Ngoma using a crane owned by the department and that he acted under the instructions of Solomon Sinfukwe. The witness testified further that he interviewed Matcyo Ngoma who confirmed what Timothy said and so he proceeded to interview Patrick Musonda (PWS) who said he bought two steel containers from the accused person which he also sold to two different buyers and that a letter of sale was availed to him. The witness testified that he got the other copy of the letter of sale from Solomon Sinf ukwc after issuing him fa!· ACC 12 which he identified and was marked ID8 and later produced as P8. The witness also identified the letter of sale which was marked ID9 and produced as P9. PW8 stated that he interviewed Anderson Sakata (PW3) who also confim1ed having bought a steel container from Mr. Sinfukwc and that he was currently using it at Kapata market. PW8 testified further that he interviewed Sharpson Mumba (PW6) and he established that indeed 02 containers were left at Mduwi dam for use during the project and that one container was picked in a blue unregistered truck under the instructions of Solomon Sinfukwc. The witness stated that he verified with the department as to where the container was taken but no one had any information. Based on this information, he established that Solomon Sinfukwe was a public officer- executive officer under the department of water affairs and that the said Solomon sold three containers; two to Patrick Musonda and one to Anderson Sakala. He further established that Solomon got one container from Mduwi dam and took it to an unknown destination. The witness said through the investigations, he stablished the containers were property of the government of the Republic of Zambia and each was valued at K25, 000 and that Solomon Sinfukwe had no authority to dispose of the property like he did. Based on the findings, he warned and cautioned the said Solomon Sinfukwc who admitted that he sold one container to Patrick Musonda and it was at that point that Solomon gave the witness the copy of the letter of sale (P9). PW8 stated that he proceeded to charge and arrest the accused for the subject offence. Jll When cross examined, the witness stated that he interviewed Stoykc and Mr. Changa who was provincial water engineer but that in 2012 the said Mr. Changa was not in Chipata District. lie stated that there were houses which were surrendered to the government by Jl3G and the same where offered to sitting tenants. Ile admitted that the accused was a sitting tenant in of the houses. He told court that he never came across any information that some senior officers wanted the accused out of the house so they could get it themselves. The witness said Musonda Patrick (PW5) purchased two containers which be later sold to third parties. I le admitted that he never went to Mfuwc or Livinstonc to confom that the containers were indeed there but that for the container in Livingstone, an officer there confirmed it was there. During investigations, he found out l 0 containers were missing and 02 were found at Mr. Lombc' s house. He said the containers were still property of the government and that he did not know who moved them there. The witness said the containers were surrendered in 2011 at the end of the project and that it was true that he never produced a detailed report showing the location of the same containers. PW9 was Matcyo Ngoma who testified that in 2011 he found a job at the department of water alTairs as a driver and his duties included driving the crane truck. He told court that at the time he worked for the department, the Provincial engineer was Felix Lambe and that in the same year 201 l , Mr. Lambe told him to move 03* 20 feet containers from IBG offices to his home in Bombay area. He stated that on a different date, the late lv1r. Patrick Mwila who was also an engineer instructed him to find a customer for one 20 foot container and so he went to Kapata Market where he met Anderson Sakala (PW3) a businessman who was interested in the container. The witness said he went to Mr. Mwila and together they moved the container to Kapata market and the transaction was concluded. PW9 testified further that the late Mr. Lombc told him to get one container from JBG premises and take it to I ,ivingstonc which he did. When he got back from Livingstone, Mr. Patrick Mwila asked him if it was possible for Mr. Anderson to buy another container and so he went back to sec PW3 who agreed and the two went to Mr. Mwila's house where they picked a container and took it to PW3's home in Magwcro compound. The witness said the transaction was concluded by the two. PW9 testified further that on a date he could not recall, the accused person who was an executive officer called him and told him to find a customer for a container and so he went to Kapata market where he met Patrick Musonda (PWS) who was interested. Together with PWS, they J 12 went to the accused's house and got the container which they took to PW5' s house and a crane truck was used to move the same. He told court that PW5 requested for a contract of sale lo be drafted and it was signed by both parties and he also signed it as a witness. The witness identified the letter of sale (Referred to P7). PW9 testified further that on a date he could not recall, he went to Mduwi dam to take cement and that when he got to the site, Mr. Mumba asked him to load a 20 foot container in the truck. I le loaded the truck but that he did not know where the ttuck went as he remained doing other duties. PW9 identified the accused person as Solomon Sinfukwe the man who asked him to find a buyer for a container. During cross examination, the witness stated that Kapata market had a lot of steel containers. This was the evidence I heard from the prosecution. I complied with section 207 of the CPC, CAP 88 of the Laws of Zambia and put the accused person on his defence. Ile elected to give sworn evidence and called no witnesses. The accused person stated in his def encc that in January 20 IO he worked for the Ministry of Mines, energy and water development and he was appointed as an Executive officer. He stated that his duties included handling personnel matters, giving administrative support to management and that he also provided secretarial services during management meetings. The accused stated that management comprised of the provincial water engineer, senior water engineer, senior hydrologist and the senior hydrogeologist and that he reported to the provincial water engineer. Ile said when he came to Chipata, the provincial water engineer was Vincent Ngulubc and barely two months after reporting, Vincent was replaced by engineer Edward Mwanza. In the same year 2010, Edward died and was replaced by f eliX Lombe. Ile told court that in 2010 ZJ\NJ\CO was offering GRZ scheme loans which he applied for and was given. He stated that he bought a plot in Chimwemwe compound but did not develop it. The accused said he went to sec the late Mr. Lombe who had about 04 to 05 steel containers on his yard and asked for one container so he could use it to store building materials at the plot. He testified that Mr. Lombe told him that he would send people to take the container to his house and this was done when the accused was away for work in Lusaka. The accused said when he got back from Lusaka, he went to Mr. Lombc and thanked him for the container. He stated further that Mr. Lombc told him to pay a K3, 000 so the container would be his and that was what he did. He stated that the container he bought belonged to Mr. Lombc and J 13 he knew this because that was what Mr. Lombc told him and they were on his property so he believed Mr. Lambe. The accused said 03 months later, he wanted to start building but the plot had so many issues and so he never moved the container to the plot but it remained at his house from 2010 till 2011 when he decided to dispose of it as he had no use for it anymore. He told court that he looked for buyers and engaged his work mates to assist him. The container was advertised and posters were put up at Kapata market anti Chipata motel. He testified the Mr. Mateyo Ngoma (PW9) approached him and told him there was someone who expressed interest in the container and that was how he met Musonda Mulcnga (PWS) from his office. The accused stated that he took PWS to sec the container and the transaction was concluded and the purchase price was K9, 000. I le told court that a contract of sale was written and signed by PWS, PW9 and himself. The witness said P7 was indeed the contract he signed with PWS as he wanted proof of the sale of his property. The accused said he did not know anything about a container that went to Mambwc and that over the allegations made by Timothy (PW4), he stated that there could have been other senior officers who may have instructed him to release the containers but that it was not him. The accused testified that PW4 was bitter towards him because he was the one who relied the infonnation of his te1mination of employment. The accused testified further that he had no grudge against PW4 but that after he told PW4 of the termination, he went to different institutions and offices complaining and threatened the accused. He told court that PW4 told him that he would ensure that the accused would go to jail and never have peace. The accused said what Mr. Mumba O>W6) said was false because the period mentioned, the accused never went to Mduwi dam. Ile said he never called PW6 or even go to the dam to sec him in person. The accused said he never had any business with Mr. Sakala (PW3) and only heard about that person from court. I le told court that all the allegations were out of malice. He testified further that in 20 IO; 04 houses were oITcrcd to sitting tenants; two were offered to Mr. Lambe, one to Mr. Changa and that the other senior officers never qualified so he was offered the house instead. The accused said things were just alright until 2014 when a new provincial water officer took over and got interested in the house the accused was offered. The said Mr. Changa questioned the whole process o[ how the accused got a house and so he blocked the ofter letter. The accused testified that Mr. Changa wrote letters to the ministry and that he even told the accused that he would ensure he lost U1c house and job. He said because of that, Mr. Changa reported things that happened in 2011 when he was not there. The accused said J 14 he sued Mr. Changa over the house and finally in 2020, he got the offer and received the letter in 2021 . During cross examination, the accused testified that he was aware that 22 containers were handed over to the department by Mr. Stoyke but that he was not part of the team that handed over or received the same. The accused admitted that transport issues were part of his duties as executive officer and that he reported to the provincial water engineer. I le stated that he was not aware that Mr. Lambe got OS containers from the department but that he indeed got one container from Mr. Lambe as he knew Mr. Lambe was the owner of the same. The accused told cou1t that he did ask for proof of ownership from Mr. Lombe before buying the container at K3, 000. He said there was no letter of sale that was written to that effect. The accused said Mr. Lambe was his boss for 02 years and Mr. Changa took over from Mr. Lambe in 2014. The accused testified that he never knew PWS before the transaction of the container. He stated that only the department of works and supply was mandated to dispose of government property. Ile continued to state that the senior water officer- Mr. Kayuni was around the time Mr. Lombc was alive but that the said officer only acted after the demise of Mr. Lombe. The accused denied ever going to Mr. Lombc's house to pick a container and that he was not aware Mrs. Lambe said he told her he was given the container by husband. The accused said he was not aware of the audit that was conducted for the missing containers and that he was never approached by any auditor over any container. The accused stated that he knew PWS during their transaction and not before that and that even PWS himself failed to show when exactly they knew each other. He said Mr. Banda's testimony against him was malicious but that he had nothing to show the court to show the malice and the same applied to Mr. Changa. He admitted that he never complained to anyone over Mr. Changa's conduct towards him. The accused said he never heard that containers went missing at the MinistTy and that taking inventory was not part of his job. The accused said PI talked about assets that were handed over to the department but that he still did not know if Mr. Stoyke handed over any assets. The accused testified further that no one was present the day he had a discussion with Mr. Lombc regarding the containers and he did not know who was used to move it to his house. He told court that he had not married the time the container was moved to his house. He said he was not aware of any audit report regarding the missing containers and that he J 15 would dispute if anyone connected Mr. Lombc to the missing containers. The accused said he only knew about the containers at Mr. Lombe' s house and they belonged lo Mr. Lombe. He admitted that he was never told by Mr. Lombc where he got the containers from and he too never bothered to ask. Ile said he was aware 05 containers were moved from JBG premises and one of those containers was moved to Mr. Lombe's house in Livingstone but that he was not aware that Mr. Lombc was the one who authorized the movement of the same containers. In Re-examination, the accused stated that there was no written agreement between Mr. Lambe and himself but that he knew Mr. Lombc was the owner of the said containers. The accused said he only heard about the audit report as well as handover notes from courl. I le said according to Pl , PW l handed over the assets to the Director of water a ff airs Mr. /\dam IIusscin. And this was all the evidence and both parties filed in wrillcn submissions which I have greatly considered and I must state that I am grateful for the said submissions. I laving considered the evidence, l found the following facts to have been established; 1. PWl was the manager for JBG, and he handed over assets to the department of water affairs at the end of their contract, 2. That P 1, showed the list of assets that were handed over including 22 steel containers, 3. That the 22 steel containers were kept at JBG premises but were under the care of the department of water affairs which is a department under the government of the Republic of Zambia, 4. That upon auditing the assets that were handed over by JBG to the Department of water Affairs, 9 steel containers were found missing. 5. 'l11at the accused person was an executive officer under the said department, 6. That PW5 during the same period bought 2 steel containers one of which he bought from the accused person with the help of PW9 the same was supported by a written contract of sale 7. That during the same period PW3 as well bought 2 steel containers that were delivered to him by a truck for JBG. 8. That one container was moved from Mduwi dam and was loaded in the presence of PW9 the driver and PW6 who was in charge of the site. I do find these to be facts in this case What appears to be in dispute to me arc the following facts; J 16 I. Whether or not the two containers PW5 bought were both sold to him by accused with the help of PW9. 2. Whether or not the 2 containers PW3 bought were sold 10 him by accused with the help of PW9. 3. Whether or not it was accused who instructed PW6 to release the container to PW9 that was at Mduwi dam. These arc the disputed facts in this matter which I propose to resolve at the same time with the application of the law. APPLICATION OF TU E LAW I wish to state that the offence of theft by Public Servant has mainly two ingredients and these arc: there must be actual theft of goods and the goods must be stolen from the employer or must have come in possession of the accused by virtue of employment as was held by the Supreme Court in Simango V The People ( 1974) Z. R. 198 (S. C.) S ince the charge is one of theft by Public servant it is absolutely necessary to consider whether or not accused person was a "public servant" within the meaning of the law al the time of the alleged off cncc. I wish to state here that the Penal Code docs not define the phrase "Public servant" instead section 4 defines "a person employed in the public service" which I firmly believe carters for a public servant as well. In that regard "person employed in the public service" has been define to mean any person holding any of the following offices or performing the duty thereof, whether as a deputy or otherwise, nan1ely among others all persons in the employment of any department of the Government, or a person in the employ of any corporation, body or board, including an institution of higher learning, in which the Government has a majority or controlling interest or any director of any such corporation, body or board. In relation this definition, Silungwc J as he was then in the case of The People V Mabuba (1972) Z. R. 21 (H. C.), expounded the law as follows; "For purposes of clarification just in case any Magistrate may be in doubt as to who should be charged under sections 243 and 248 of the Penal Code, I would direct his attention to the definition I have referred to under section S of the Penal Code. That J 17 definition includes persons employed in various categories. A public servant is therefore not necessarily a person who is employed under or is subject to the regulations of the public service commission or the judicial service commission. It includes as can be seen from (iv) of section 5 ibid 'all persons in the employment of any department of the Government'. This definition would therefore cover for instance daily Government employees such as of ..... orderlies or messengers." This decision obviously was decided before rearranging of section in the Penal Code hence referring to different sections other than the ones accused is charged with. In this case it is beyond refute that the accused person was employed as an executive officer under the department of water affairs. He was therefore a Public Servant within the meaning of the law. I must mention that while ingredients of this offense of Theft by Public Servant have been noted to be two in a general sense, the Supreme Court meant that there must be proof of ' theft' implying that all the ingredients of theft must be proved. Additionally, another ingredient must be proved which is separate from ingredients of theft that is to say the property stolen is the property of the employer. In this case, it had been established that the accused was indeed a public servant; I must now consider whether or nol he stole the said containers. The first clement to be determined at this point is whether or not there was theft of the said containers as per indictment. In order to resolve the foregoing, it is absolutely necessary to consider all the clements that constitute theft at law and the first clement of the offense of theft as already identified is taking of anything capable of being stolen. In this case, it is alleged that 22 containers were handed over to the department of water affairs by PWl and that in the year 2012 the accused stoic 04 of those steel containers. The question I ask myself is whether or not there is sufficient evidence to prove this clement. Before delving into evidence, I have found it inevitable to define the noun ' taking'. It is defined for the purposes of the offense of theft by section 265(5) of the Penal Code Chapter 87 of the laws of Zambia which is couched in the following language; 'A person shalJ not be deemed to take a thing unless he moves the thing or causes it to move.' J 18 It follows from the foregoing that any slightest movement of anything capable of being stolen from one place to the other even within U1c owner' s premises is sufficient evidence of taking at law. Coming to the evidence before me, it is not in dispute that out of the 22 steel containers that were handed over to the Department of Water Affairs only \ 3 were fo und after the audit. I do not ilicrcforc need to overstretch my mind in order to satisfy myself of the fact that 09 steel containers were taken from the premises were they were kept. I Iowcvcr, in this case only 4 arc alleged to have been stolen by the accused or simply put arc alleged to have been taken by the accused. I do therefore not hesitate to find that there was taking of the 4 containers as per indictment wiUun the meaning of the law. What remains to be determined is whether or not it is the accused who took them said containers from where they were kept. Turning to the evidence, firstly there is direct evidence ot l.l. W1' who at the time worked as a security Guard for the Department of Water Affairs where the steel containers were kept. I Iis 9"'-' '¥ evidence was that on the material day PW9 went to the premise to collect 3 steel containers. At the time, accused who was the Executive officer then talked to him on phone instructing him to allow PW9 to collect 3 steel containers. On that strength, he allowed PW9 who was his workmate to load the containers and documented everything except he later found that the page on which he wrote was tom from the book._!:.lowcvcr, PW4 is a wi!_~ess with a possible bias on the basis that he admitted in cross examination that he was bitter with accused because it was -- him that delivered his termination letter. His evidence thc@[QC.c rcg. Y.i cs corroboration to rule out -------- -- the dangers of false implication: .:....:..:.:__~__;.:..--'---'--....__. - -.. - ~ - - - --... - - -- - As regard the fourth container, evidence was from PW6 who stated that he was the supervisor at Mduwi dam. He deposed that while working there, the accused visited the site and asked for one container which he said was needed for a project in Lundazi. PW6 stated that the accused said someone would go to get the container and ~ was ~.2-~ pJilJ!lc ~ oEtaj~~ it_!__~ _ _l>_lu~ ~ ~~__gi~t~rcd truck. PW6 said he did ~~w where tl~c- ~ontaine~_~ kc1:_.2,~_t ~ a~ ovcd ~-~~_P-rcm~ at the instance of the accused pcrso1~. Accused has denied these pieces of evidence which he has described as malicious allegations. Regarding the evidence of PW4, the question I asked myself is whether or not there is any evidence to corroborate his evidence, J 19 Reverting to the evidence, the evidence that intends to confirm that PW4 is telling the truth when he said accused sent PW9 to collect 3 containers is that of PW5 . Ile told court that he bought two steel containers from the accused person during the period in question personally and that a contract of sale (P7) was only done for one container. For the second container, there was no contract of sale signed because the witness purchased it on behalf of his friend from Mfuwc. Accused docs not dispute selling the steel container where they executed a contract of sale. Strangely, he disputes selling the one where no contract was signed. I say so bccausc,_fWS is a". . i!:!._~pendcn1._~itncss, and as such L sa no __ rca_~o~1 ~hy he ~o~ld f~lscly i_mplicate the acct1§cd per:!.on thaUc bought_]__contaLn_.9·s J r<?_m J:ti~ w!:!_cn he i!l fact b_ought only one. I must __ a~ - - - - - ------- - menti2.!:!.. that I do no lose sight of the evidence of PW9 who was called as a §late w~tness ~l~ in ----.....---- _J?Y vic;w is a suspect witness who should have been in the dock with ac-9:!§£.<LJ say~_!)c~use,_ __ ......;.~------------------------- --- - - - --- he appears from the evidence to have been the person accused was using literally in every - - - ' ' - - - - - - ·-- ---- ·-- - -- - - -- - - - transaction from the taking to the selling. This is not only to the steel contain~!_S _§Ol~_lo P~ j h~ -- --~ ·--- - -- - •!tainer~ !l1!_ough P}V9_ and that _also those sold to PW3 who told court that he bought t~ ~~cond container l~e w~~~!:. G. Ssly told to ivc tb~ remginil}g_!2alancc of_ KS00 to_ the owner Solomon Sinfukwc. The witness said the umb.crJru: _S_olo11WQ.. W~_ givcn t hinvmd that -~ .,.!!_1cyY1ct at downsho_Rs where the transaction was concluded. Thc_question I ask myself is wi}y -----,- - ~ould PW3 mention PW9 if at all he did n~t _!?u_y the SQ111~inc1·s [!1rough Jiim, Plaj_ply, _givcn_thc _ actiy~ _ _r:_ole P~9 played, is r~_asoD _£g_o~g_~ which_ obvlo.11sly ca).lsed him to tum_ into J1osti le I{ witness and only gave evidence favorable to the accused. Notwithstanding, the inconsistence he ,,_;_~;....;:_=:c_:::_~._.2.~:.......::...:..=~:.=-=-..:..::..:=.:....:;~=-cc..:;_:..=c-=.= . - - - -- - - - - - J 1as created for the state, his evidence is far outwci _!led !2_).'. the evidence of other state w~ )~_hich has been properly corroborated. It is therefore ~ ue__!~a~~cus~_Q_nJ.y__s.9ld ..2. IJ.~... S1e~l co1Uainer to PW5. Further, it is not true that accused was given one container by the deceased, In .-·- ------ the light of the above, the only reasonable inference that can be drawn is the fact that the 3 containers gotten by PW9 from JBG premises and 1 from Mduwi Dam at the instruction and directive of the accused arc the same containers sold to PW3 and PW5 respectively. Further since, it is accused who gave directives being the Executive officer for their movement and subsequent selling, constructively, it is the accused herein that moved or took the 4 containers herein and I find the same to be a fact. The next clement to be determined at this point is the mens rea of the offense of theft that to say the intent of the accused at the time of taking the containers as per indictment. From the J 20 definition of Lhcft provided above. the mens rea for o1Tcnse of theft is fraudulent taking which is defined lo mean intent to deprive the owner permanently among others. I wish to state here thul regarding intent it bas oficn been said that no one knows , hat is in the mind of another person until he puts his thoughts into action. It is for this reason that the intent of u person is nonnally inferred from overt acts. ln relation to the o1Tcnsc of theft as already alluded to, what is to be proved is the intent lo deprive the special or general ovmer of his thing permanently among others. Reverting to the case in casu, the evidence is that the accused sold three containers; two to PW5 and one to PW3 through the drivcr-PW9. The accused was never allowed lo gel the containers from the premises and in cross examination, the accused actually admitted that only the department of works and supply was authorized to dispose of any property that belonged to the government The accused person sold the containers in his personal capacity hence intending lo pcm,ancntly deprive the owner of his property for good. I do agree with the learned prosecutors that who relied on the case of Chan Man-sin V A-G of Hong Kong (1988) 1 ALL ER 1 PCI and I am therefore satisfied beyond all reasonable doubt that the mens rea for the offense of theft has been proved to the required standard namely intent to deprive the government of its property. The lust clement is what was slated by the Supreme Court in SIMANGO Case (1) in which the , uprcmc Court held inter alia that the offence of theft by servant has two ingredients: there must be u tu11l then of property and the property must be stolen from the employer. Did the 04 steel containers belong to the government of the Republic of 7.ambia? Comi1tg to the evidence before me, PW 1 testified that he handed over 22 containers among other uss1.:ts to the department of water alTairs. 'Ibis department is under the Ministry of Mines, Energy w,d \ nter development of the Republic of Zambia. The accused did not dispute that P 1 showed the 2- containers were given to the department. Defence Counsel submitted that there was no trict proof as to the description and identity of the containers as containers were common nrlidcs and be urged the court lo take judicial notice of the !act that Kapata market had several contui\crs owned by di!Terent people. In supporting his submissions, Counsel cited the case of G:tstovc Kapata V the People (1984) Z. R 47 (S. C). [le further submitted that PWl said the conlaincrs lhat v ere handed over were written off and of no value as they had holes and where kw in a bad condition. I le stated that PW 1 was never led to identify the same containers at the J 21 market and also that no serial numbers or government codes were produced in court to show they were the same containers that were given to the department. In resolving the issues raised by Defence Counsel, firstly I do agree with him that as a court, I must act on the evidence before me and not fill in the gaps. However, counsel di_d not f~rl'}ish !_he court with_ th<?_ 1<!~- wl}ic_b___g~~~-j hi!L~II government property has government co9es or ~erial numbers to give that distinct description. The moment the containers were handed over to the • - - • - ...t.' ·- - - - ~ - department of_ water affairs, they became prQJlerty of the government wit!~ or without - - -· - . - - govemmen~~ode!i: I must hasten to mention that PW l never said the containers had no value but he did say they were written off, in a bad condition and for disposal and this did not mean they had no value as there was no report from Ministry of Finance to say they were of no value. I wish to state here that, even if I was to accept the submissions that the steel containers were written off, the same is no doubt not a defense at law as it is trite law that ~s lq_11g l!.~ tl!~Y WC.£<:_ still property of government, they ~ere Sc!P~bls_ o( _l>cirig sl_Q1Qt1 until th_sy__ are __ di~poseg of by gov<:_rnme1~. I am therefore satisfied that the 4 stolen containers by the accused an employee of government were property of government and I find the same to be a fact. In the circumstances and by the reasons of the foregoing therefore, I am satisfied beyond all reasonable doubt that the prosecutions have proved against the accused person the off cnce of theft by Public Servant contrary to section 272 and 277 of the Penal Code Chapter 87 of the Laws of Zambia as charged and as such, I do hereby find him GUILTY and I accordingly CONVICT him. DELIVERED IN OPEN COURT I I I 11 t ', ,.\ • •'} ,,.:J /,_ J J 22