S v Moyo (CRB 4262 of 2012) [2015] ZWHHC 67 (19 January 2015)

1 HH 67-15 CRB 4262/12 CA 773/12 THUTHANI MOYO versus THE STATE HIGH COURT OF ZIMBABWE BERE & MANGOTA JJ HARARE, 17 June 2014 and 20 January 2015 Criminal Appeal Appellant in person I. Muchini, for the respondent BERE J: The appellant was charged and convicted of the offence of unauthorised use of property as defined in s 116 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. Following his conviction the appellant was sentenced to 10 months imprisonment which was wholly suspended on certain conditions. This appeal is against both conviction and sentence and the thrust of the appellant’s appeal is that his conviction in the lower court was made against the weight of evidence which screamed for his acquittal. In support of this contention the appellant has among other issues attacked the authenticity of the resolutions which were relied upon by the learned Magistrate in justifying his conviction. The appellant has also sought to highlight the unreliability of the evidence of the key state witness, one Abel Denhere. The respondent’s counsel filed a concession of the appeal in terms of s 35 of the High Court Act. We have considered the concession filed and the reasons thereto and we are of the firm view that that concession was well made and an informed one for that matter because of inter alia the following considerations. HH 67-15 CRB 4262/12 CA 773/12 It will be noted in the first place that the State outline is categoric that at the material time the appellant had been relieved of his duties by the complainant organization yet to the contrary, no resolution to this effect was produced in these proceedings. It could not possibly have been the correct position that the appellant was not allowed to drive this motor vehicle at a time the registration documents bore his particulars because in order for the change of ownership to have been effected, the appellant had to drive this motor vehicle. During the proceedings there were certain references made to the President of the organisation and it was naïve on the part of the State counsel to have closed its case without leading evidence from such a crucial witness. The evidence would have clarified the actual position of the appellant in the organisation. This casual approach weakened the position of the State case as against the appellant. There was also an averment made that when the vehicle was being kept at King House it remained in the custody and control of the appellant until its registration had been formally concluded. This position could not have been rebutted without a proper resolution to that effect. It was certainly not safe for the Magistrate to religiously accept the evidence of Abel Denhere as it is clear that already the appellant was having work related problems with Denhere. It is quite revealing to note that what triggered these allegations were the events of 13 April 2012 when the appellant took the motor vehicle from King House. Whereas, Abel Denhere says at that stage the appellant was no longer employed by the complainant’s organisation. One of the most crucial witnesses David Madenho was categoric that at that stage the appellant was still employed as a driver of TOC-H, the complainant’s organisation. The bottom line is that there were work related problems at TOC-H and those problems appear to have triggered these allegations. Furthermore, in the absence of a proper resolution, it was clearly not safe for the learned Magistrate to accept that the appellant had unlawfully taken the vehicle from King House when it could not have been possible to have the vehicle’s registration changed without it being driven to Southerton Police Station for clearance by the appellant. For these reasons the respondent’s concession was well made and the appellant succeeds in his appeal. HH 67-15 CRB 4262/12 CA 773/12 MANGOTA J agrees:………………………….. National Prosecuting Authority, Respondent’s Legal Practitioners