S v Ndlovu and Ors (HB 81 of 2006) [2006] ZWBHC 81 (9 August 2006)

Judgment No. HB 81/06 Case No. HC 2393/06 CRB TSH 131­34/05 THE STATE Versus NOAH NDLOVU And DUMISANI MOYO And HONEST NYATHI And PHILANI MLINGO IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 10 AUGUST 2006 Criminal Review NDOU J: The accused persons were jointly charged with theft by conversion 21,2 kilograms of meat [beef] before a Tsholotsho Senior Magistrate (the evidence shows 20,2 kilograms). Despite their protestations, they were all convicted. Each one was sentenced to a fine of $5 million or in default thereof, 2 months imprisonment with an additional wholly suspended sentence of 4 months (suspended for 3 years on conditions of good behaviour.) The background facts are the following. All the accused persons were employed by the Ministry of Health and Child Welfare based at Tsholotsho Hospital. Accused 1 was kitchen supervisor, accused 2, a stores assistant and accused 3 and 4, as general hands. HB 81/06 It is common cause that on the day in question, all went to Bulawayo to collect provisions for the hospital. Amongst the provisions they collected, was 150 kilograms beef from Head and Hooves Butchery. The meat was weighed in the presence of accused 1 only. They used a hospital open truck for the journey. Accused 1 sat in front with the driver whilst the others sat at the back. They left Bulawayo after 1600 hours. The truck developed mechanical problems on the way. They were forced to stop on the way and contacted Tsholotsho Hospital for assistance. An ambulance was sent from Tsholotsho to render such assistance. The major problem was that the truck they were using had no lights. The ambulance arrived at where they parked around 2100 hours. No evidence was adduced on the security of the load before the ambulance arrived. It is clear that they were parked at Nyamandlovu District Hospital whilst waiting for the ambulance to arrive. As alluded to above, it only arrived at 2100 hours . What is not clear is the time they arrived at Nyamandlovu. Even accepting the trial magistrate’s finding that they must have arrived 45 minutes travel from Bulawayo, it is obvious that they spent a long period of timer under the cover of darkness. From Nyamandlovu they were driving behind the ambulance which provided the lighting. They eventually got to Tsholotsho Hospital at 2353 hours (that is the time the meat was weighed) accused 1 dropped from the truck to go to collect storeroom keys. When he returned the meat had been weighed and the above­mentioned deficiency cannot account for the missing meat. They opined that perhaps the other packets fell off as they were travelling in an open truck at night. The trial magistrate held that the view of the accused persons was not distracted on the way as stated by accused 4. There is no sound basis for this finding bearing in mind that this was a very long and eventful trip spanning over a period of HB 81/06 eight hours. The last three hours of the trip was under the cover of darkness. Their truck did not have lights and had to rely on the illumination provided by an ambulance driving ahead of them. Accused 2 was asleep part of the trip. No evidence was adduced on their sitting arrangements at the back of the truck and the way the vehicle was loaded. The magistrate said because they did not expect a security guard to be waiting for them [it was the first time that this happened] and did not report the missing beef immediately, they must have stolen it. This is a mere suspicion harboured by the hospital authorities which the trial magistrate translated into evidence. From the undisputed evidence the only person who left the truck prior the weighing of the meat at the hospital was accused 1 who went to collect storeroom keys. Maybe this raised some suspicion on his motives, but, there is certainly no evidence that he acted in common purpose with the other accused persons. In any event, the driver was not charged yet he was in the vehicle. The evidence of the two state witnesses does not take the prosecution case much further. Memory Moyo, the security guard, confirmed basically what is outlined above. He also opined that the load was secure when it arrived. He was initially charged for allegedly participating in the offence. He was later released to become state witness. He is an accomplice (substantive or quasi). It is common cause that he was not given the delivery note. Mr Paul Tamayi the hospital accountant also testified. He did not witness the arrival of the truck. One would have expected the state to call the driver of the truck. He was not called. Has the stated proved anything beyond suspicion? I do not think so. The accused persons gave an explanation on what could have happened to packets containing the missing beef. It is trite law that their explanations cannot be rejected out of hand. This is so because no onus rests on the accused persons to convince the HB 81/06 court of the truth of any explanation they give. The court does not have to believe the accused person’s story, still less has it to believe its details, it is sufficient if the court thinks that there is a reasonable possibility that it may be substantially true – R v Difford 1937 AD 370 at 373; R v M 1994 AD 1023 at 1027; S v Kuiper 2000 (1) ZLR 113 (S) at 118B­D; Chindunga v S SC­21­02 and S v Zvobgo HB­136­05 at 11. In casu, there was no evidence adduced on how the load was secured at the back of the truck between Bulawayo and Tsholotsho. The state should have called the truck driver to testify in this regard. He was not called. There is a possibility of the meat being stolen at Nyamandlovu Hospital after the breakdown where they were parked until 2100 hours. Once more there was no evidence adduced on where the truck was parked or whether the load was guarded and the source of light after sunset up to 2100 hours. In the circumstances, the accused persons’ explanation for the missing beef is substantially true. It has not been shown that it is false beyond any reasonable doubt. It is trite that in criminal matters, the legal burden of proof remains fundamentally upon the state, it cannot shift to the defence. The accused bears no onus, in this sense of proving his innocence – South African Criminal Law and Procedure (Volume V) Lansdown and Campbell at 909 – 910. Even where, as is the case here, he relies upon facts peculiarly within his knowledge or pleads a general denial, the onus remains on the state to negative his innocence – R v Ndlovu 1945 AD 369 at 386­7; R v Biva 1952 (4) SA 514 (AD) at 520­1; R v Cohen 1933 TPD 128; S v Isolano 1985 (1) ZLR 62 (S) and Criminal Law in Zimbabwe 15­11­83. In the circumstances, the approach by the trial magistrate on the question of the burden of proof was fundamentally wrong. He erroneously placed the burden of proof on the accused persons. Further, HB 81/06 even if the testimony of two state witnesses is believed, the most that such testimony does, is to create a suspicion. It is trite that a criminal court cannot convict on a suspicion no matter how strong such suspicion is. The prosecution in this case is not so strong as to leave only a remote possibility in the accused’s favour – Miller v Minister of Pensions [1947] 2 ALL ER 372 (KB) at 373H and S v Isolano, supra, at 64. There are a lot of possibilities here. First the meat could have fallen on the way from Bulawayo to Tsholotsho as suggested by the accused persons. Second, the meat could have been stolen at Nyamandlovu Hospital. Third, the meat could have been stolen by either of the accused persons without the knowledge or connivance of the others. The fact that the drive was not charged is indicative of doubt on the part of the state. We are dealing here with circumstantial evidence. There is no direct evidence that the accused persons took or were seen taking the meat. The learned trial magistrate fell into error when he concluded that the circumstantial evidence adduced led irresistibly to the conclusion that the missing meat was stolen jointly by the accused persons. From what I have just highlighted above it is clear that more than two inferences, not consistent with the guilt of the accused persons, may be drawn from the proven facts. On this basis the accused persons should have been acquitted – Teper v R [1952] AC 480 at 489; R v Difford supra; S v Marange and Ors 1991 (1) ZLR 244 (SC) at 249A­F; S v Shoniwa 1990 (1) ZLR 311(S) and S v Gijima 1986 (1) ZLR 33 (S). Accordingly, I quash the convictions in respect of all the accused persons and set aside the sentences. Ndou J ………………………………….. Bere J ……………………………………… I agree