S v Nhemwa (257 of 2022) [2022] ZWHHC 257 (11 March 2022)

1 HH 257-22 CA 217/21 JEALOUS NHEMWA versus THE STATE HIGH COURT OF ZIMBABWE ZHOU AND CHIKOWERO JJ HARARE, 7 and 11 March 2022 Criminal Appeal N Nyatsomwa, for the appellant KH Kunaka, for the respondent CHIKOWERO J: This is an appeal against the conviction of the appellant on four counts of theft as defined in s 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The appellant was sentenced on each count making a total of fifty- seven months imprisonment of which twelve months imprisonment was suspended for five years on the usual conditions of good behavior with a further twenty four months imprisonment suspended on condition he pays restitution. There is no appeal against the sentence. The trial court found that on four occasions between 10 December 2020 and 4 February 2021 the appellant had stolen a total of three hundred and sixty bags of fertilizer. His modus operandi was the same on all the occasions. As the manager stationed at the complainant’s farm in Bindura, the appellant intercepted, at Glendale, a truck ferrying fertilizer from Harare meant for delivery at the farm. The fertilizer belonged to the complainant. He offloaded one hundred bags in respect of count 1, the same number in respect of count 3, eighty bags in respect of count 2, the same number in the fourth count, sold all except twenty bags which he delivered to his girlfriend. The twenty bags were recovered on the girlfriend informing the complainant of these crimes. HH 257-22 CA 217/21 It was common cause both at the trial and at the hearing of the appeal that the appellant took three hundred and sixty bags of fertilizer from consignments of the same commodity earmarked for delivery to the complainant and that he sold all except the twenty bags recovered from his girlfriend. He did not dispute that he instructed one of his agents to so deliver the twenty bags and, on selling some of the fertilizer, to give part of the proceeds to the girlfriend. This the agent did. The appellant’s defence was that the three hundred and sixty bags of fertilizer that he took from the delivery vehicle at Glendale belonged to the transporter, one Rufaro Muterera. He said he sold these on Rufaro’s instructions. Rufaro was the respondent’s fourth witness. He rejected the explanation as false. So did the court. The first and fifth grounds of appeal are raise one issue. It is that the court erred in convicting him in the absence of evidence of an internal audit of the fertilizer at the complainant’s farm. This is besides the point. This appeal turns on whether the learned magistrate was correct in finding that the three hundred bags of fertilizer taken by the appellant at Glendale belonged to, and were hence stolen from, the complainant. Accordingly, we dismiss the first and fifth grounds of appeal as being irrelevant in the circumstances of this particular matter. The same fate befalls the second ground of appeal. No inferences needed to be drawn from the fact that the security officer was the custodian of the keys to the complainant’s storeroom and from the evidence on the procedure followed on receipt of fertilizer at the farm. The fertilizer which formed the subject matter of the charge never reached the complainant’s farm in Bindura. It was that which the appellant sold and otherwise disposed of at Glendale. There was no need for the court to call the appellant’s girlfriend, Marvellous, as its witness. She was the informer. It was common cause that the appellant instructed one of the agents to deliver twenty bags of fertilizer to this informer and from proceeds of the sale of some of the fertilizer, to give some money to her. The twenty bags were recovered. Clearly, the appellant was dealing with the fertilizer as his own. This destroyed his defence that the fertilizer sold and disposed of by him belonged to Rufaro. Finally, the appellant challenges the factual findings on the basis that the magistrate misdirected himself in reposing credibility in the respondent’s witnesses. We can only interfere with those findings if the appellant persuades us that those findings defy logic or common sense. HH 257-22 CA 217/21 This threshold has not been met. Rufaro disputed the appellant’s explanation that the former loaded extra bags of fertilizer which the latter then sold at Glendale. The four delivery notes which were produced by the prosecution reflect no load in excess of that which was earmarked for delivery to the complainant. Rufaro’s testimony that no extra bags of fertilizer were loaded onto the truck after the vehicle and the consignment had been weighed at the weighbridge stood unchallenged. So too was his evidence that the truck had no capacity to accommodate more than thirty tonnes per trip. Our view is that the learned magistrate was thus correct in believing Rufaro when that witness testified that he neither loaded extra bags of fertilizer nor instructed the appellant to sell such a commodity on the witness’ behalf. Rufaro’s oral testimony was in line with the four delivery notes which were produced as exhibits. Further, his evidence was to a large extent common cause. A perusal of the record also discloses that the witness was not shaken under cross-examination. The trial court had the advantage of observing him as he testified. We are not similarly placed. The trial court is also criticized for believing the rest of the State witnesses. The complainant could surely not be disbelieved for saying he received an anonymous call which, when acted upon, confirmed that the appellant had disposed of three hundred and sixty bags of fertilizer at Glendale. The persons who bought the fertilizer from the appellant testified. The appellant did not deny selling such quantity of fertilizer. Neither did he deny that twenty bags were recovered from his own girlfriend, who had also received US$100 as proceeds from the sale of some of the fertilizer, on his instructions. He did not deny that he, not Rufaro, received the proceeds of the sale of the fertilizer. He was clearly in charge, conducting himself in a manner suggestive of the fact that the three hundred and sixty bags of fertilizer belonged to him. At record p 38 the following transpired when the appellant was being cross-examined: “Q. One of the brokers said you instructed him to give some money to Marvellous and some fertilizers to her as well. Did you also get those instructions from Rufaro? A. No, those were my instructions.” The appeal is completely devoid of merit. HH 257-22 CA 217/21 In the result, the appeal against the judgment of the magistrate court Bindura convicting the appellant of the four counts of theft be and is dismissed. ZHOU J Agrees………………………………… Zuze Law Chambers, appellant’s legal practitioners. The National Prosecuting Authority, respondent’s legal practitioners