NCUBE v THE STATE

SUPREME COURT, BULAWAYO

[Criminal Appeal SC 33-16]

November 28, 2016

CHIDYAUSIKU CJ, GOWORA JA AND MUTEMA AJA

Evidence – Accomplice witness – Warning of and applicability of cautionary rule – Unconvicted and convicted accomplice – Different principles applicable.

A court’s obligation to warn an accomplice witness that he or she is required to give evidence and answer any questions truthfully notwithstanding that the questions might tend to incriminate him or her is primarily aimed at an accomplice who is yet to be tried and convicted. When dealing with a convicted accomplice witness the court should apply the cautionary rule and warn itself of the danger of convicting on the evidence of an accomplice. In this regard the court must contrast the evidence of the accomplice with that of the accused and viewing it against all surrounding circumstances and the general probabilities of the case satisfy itself that the danger of false incrimination has been eliminated. It is not enough for the court to merely warn itself of the dangers of false incrimination and then convict simply on its faith in the honesty of the accomplice witness, based on nothing more than his demeanour and plausibility of his or her story.

Cases cited:

Gwaradzimba NO v CJ Petron & Co (Pty) Ltd 2016 (1) ZLR 28 (S), referred to

R v Juwaki and Another 1965 (1) SA 792 (SRA), applied

R v Lembikani & Anor 1964 R & N 7 (FS), applied

R v Ncanana 1948 (4) SA 399 (A), referred to

R v Simakonda 1956 R & N 463 (SR), applied

S v Makawa & Anor 1991 (1) ZLR 142 (S), applied

S v Mubaiwa 1980 ZLR 477 (A), followed

S v Ngara 1987 (1) ZLR 91 (S), applied

Legislation considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 136 (a)

Criminal Procedure and Evidence Act [Chapter 9:07], ss 225 (1)(b)(i),
267, 270

Magistrates Court Act [Chapter 7:10], s 54 (2)

N Mushangwe, for the appellant

K Ndlovu, for the respondent

GOWORA JA:

On 14 October 2009, the appellant was found guilty of one count of fraud by the magistrate court. The matter was referred to the Attorney-General on the question of sentence. On 25 January 2010, the High Court confirmed his conviction and sentenced him to seven years imprisonment, of which one year was suspended on condition of good behaviour. He has already served the sentence in full. The appellant now appeals to this Court against both conviction and sentence.

The following facts were established before the magistrate: The appellant is a businessman of some 15 years standing. He is the owner of a company called DPM, a private company duly registered as such under the laws of Zimbabwe. The appellant, through his company, acts as a middleman in “getting people selling property together”. He is not a registered estate agent.

Sometime in January 2008, the appellant caused an advertisement to be flighted in the Chronicle newspaper in respect of an immovable property known as 4051 Nketa Drive Bulawayo. The complainant, one Doris Dewa, responded to the advert. After viewing the property in question, the complainant made arrangements with the appellant to meet with the seller on 24 January 2008 at the appellant’s business premises.

The parties duly met as scheduled. Present at the premises of the appellant’s company was one Mpilo Nyathi (Nyathi) who identified herself as Magdalene Sibanda, the seller. An identity document and an original Deed of Transfer bearing the names of the said Sibanda were exhibited to the complainant. The complainant made an offer for the property and on 28 January 2008 the parties concluded an agreement of sale for the property. The seller was identified on the agreement of sale as Magdalene Sibanda. Upon signing of the agreement, the complainant paid the purchase price in full and the title deeds were surrendered to her.

The appellant advised the parties to engage lawyers for purposes of effecting transfer of the property to the complainant. Thereafter the complainant attempted on several occasions to contact Nyathi to have the property transferred into her name and without success. She then visited the property in question at which juncture she met the owner of the property, one Sibanda who denied any knowledge of the transaction. Upon realising that she had been duped she made a report to the police leading to the arrest of the appellant and Nyathi on allegations of fraud. Subsequently, the two were jointly charged in the Magistrates’ Court with one count of fraud as defined in s 136 (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

At their initial arraignment before the magistrate, Nyathi pleaded guilty to the offence. The appellant denied the charge. The trials were separated and Nyathi was duly convicted on her plea of guilt. She was sentenced to a term of imprisonment for 36 months, with six months suspended on conditions of good behaviour.

After a trial in which Nyathi appeared as a witness on behalf of the prosecution the appellant was duly convicted on the charge of fraud. The magistrate considered that the offence merited a sentence beyond his jurisdictional limits and referred the matter to the Prosecutor-General for his decision on the question of sentence in terms of s 54 (2) of the Magistrates Court Act [Chapter 7:10], which reads in relevant part:

“54 Stopping and conversion of trials

(1) …

(2) If upon the conviction of an accused person upon summary trial or trial on remittal by the Attorney-General, before sentence is passed, the magistrate is of the opinion that a sentence in excess of his jurisdiction is justified, he may adjourn the case and remand the person convicted and submit a report to the Attorney-General, together with a copy of the record of the proceedings in the case.”

Following upon a consideration of the prejudice involved in the offence the Prosecutor-General recommended that the matter be transferred to the High Court for sentence in accordance with the provisions of s 225 (1)(b)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07].

On 25 January 2010, the appellant appeared before a judge of the High Court in Bulawayo for sentence. His conviction on the charge of fraud was duly confirmed and he was sentenced to imprisonment for a period of seven years, of which one year was suspended on conditions of good behaviour. He has appealed with leave to this Court against both conviction and sentence.

In his grounds of appeal against conviction, the appellant raised the following issues for determination:

• That the learned magistrate failed to warn the accomplice witness in accordance with laid down principle.

• That the learned magistrate erred in returning a guilty verdict in the absence of evidence establishing the guilt of the appellant beyond a reasonable doubt.

• That the learned trial magistrate erred in rejecting the appellant’s evidence without giving cogent reasons for so doing.

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