He had unlawfully entered Mkoba 2 Beer hall in Gweru on 9 November 2015 and allegedly removed a three phase commercial meter reader, a three phase circuit breaker, two metres of 16 mm electric cable, 10 m of 1.5 mm electric cable and 10 m of 2.5 mm electric cable belonging to Zimbabwe Electricity Distribution Company all valued at US$ 1 105. When he was cornered by a security guard and two police officers at about 9 am on that day, he had in his possession a spanner.{mprestriction ids=″1,2,3,4,5″}
The security officers had been attracted to the redundant beer hall by a disturbing cracking sound coming from inside the beer hall. The electricity cables which were cut resulted in an explosion which ″affected″ the neighbourhood cutting off its electricity supply.
Upon convicting the accused person the trial magistrate inquired into the existence of special circumstances as would inform the imposition of a sentence other than the mandatory one in accordance with the penal provision of the Act. Section 60A (3) of the Act provides:
″Any person who, without lawful excuse, the proof whereof shall lie on him or her –
(a) tampers with any apparatus for generating, transmitting, distributing or supplying electricity with the result that any supply of electricity is interrupted or cut off; or
(b) cuts, damages, destroys or interferes with any apparatus for generating, transmitting, distributing or supplying electricity;
shall be guilty of an offence, and if there are no special circumstances peculiar to the case as provided for in subsection (4), be liable to imprisonment for a period of not less than ten years.″
The penal section therefore imposes a mandatory minimum sentence of 10 years for offenders unless special circumstances exist. Section 60A (4) of the Act provides:
″If a person referred to in subsection (2), (3), (3a) or (3b) satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court, why the penalty provided under subsection (2) or (3) should not be imposed, the convicted person shall be liable to a fine up to or exceeding level fourteen or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment.″
On special circumstances, the accused person stated as follows:
″It is true that I entered the premises to protect myself considering that I was holding beer. I am disabled as I have no right hand which end on my elbow. Considering the height of the meter box, one should have something to grab on. Considering that I have no right hand which have fingers and that my left hand has only two fingers it was impossible for me to dismantle it. Consider that the cables are thick, I was expected to use both hands to cut it, which I don't have.
The witness said the cables were cut but only a hammer was recovered. There was no sharp instrument that was recovered. There (sic) metres of cables produced are shorter than what is mentioned in state papers.
At the beer hall there are many different paths. May be other people were involved and when they saw the police, they ran away.″
Clearly the accused did not directly deal with the issue of the existence of special circumstances but presented a fully-fledged defence making it clear that it was practically impossible for him to have committed the offence. It is significant that throughout the trial the accused person had asserted his innocence denying having tampered with any equipment. He had insisted that for one to remove cables they would need a screwdriver not a spanner.
According to him he was a victim of circumstances having been at the wrong place at the wrong time, his only infraction being that he was public drinking which forced him to hide in the abandoned beer hall when he saw two police officers on patrol. Quite a reasonable explanation one would say.
According to one state witness, Douglas Moyo the security guard, when the accused heard footsteps he had come to the counter and had in his possession a half-finished container of opaque beer. A pile of electric cables and a hammer were later found behind the counter. Those facts were confirmed by the police officer who arrested the accused. The Zimbabwe Electricity Supply Authority, (ZESA) employee who testified in court also confirmed that the electric cables ″were cut by a sharp instrument.″
I am aware that this matter was transferred to this Court in terms of s 225 (b)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07] for sentence owing to the trial magistrates lack of jurisdiction to impose the mandatory minimum sentence of 10 years. Ordinarily this Court would be required to merely sentence the accused person in accordance with the law.
However, I propose to convert the proceedings into a review. In terms of s 29 (1) and (2) of the High Court Act [Chapter 7:06] this Court is empowered to review criminal proceedings of an inferior court and has wide powers to direct how the review proceedings should proceed. Where this Court is of the view that the proceedings are not in accordance with real and substantial justice, it may alter or quash the conviction. In terms of s 29 (4) of the High Court Act:
″29 Powers on review of criminal proceedings
(1)-(3) ...
(4) Subject to rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.″
Indeed this matter was not submitted to this Court for review but for sentence, but this Court is empowered by the foregoing provision, to review criminal proceedings of inferior courts or tribunals no matter how it comes to its notice that the proceedings are not in accordance with real and substantial justice. In the process of considering the matter for sentence, it has come to our notice that the conviction of the accused person was improper.
I have already said that the accused person gave a reasonable explanation as to why, firstly he was found at the beer hall and secondly why it was impossible for him to have committed the offence charged. He is incapacitated by disability and he did not have the means or tools to undertake the exercise.
In my view there was no justification for rejecting the explanation given by the accused person. The test to be applied in such circumstances was discussed in S v Kuiper 2000 (1) ZLR 113 (S) at 118B-D:
″The test to be applied before the court rejects the explanation given by an accused person was set out by GREENBERG J in R v Difford 1937 AD 370. At 373 the learned judge said:
'...no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal...'″
The court does not have to believe the accused person's story or the details of it. It is enough that the court thinks there is a reasonable possibility for it to be substantially true; R v M 1946 AD 1023 at 1027.
The moment the accused person gave that explanation as to why he was inside the beer hall, it could not be said, as the magistrate did, that he:
″...could not explain why he was at a place where gadgets were dismantled. Neither could he explain who then apart from him, could have had (sic) dismantled and disconnected the electrical gadgets when he was the only one who was in the premises″.
Still less, could the inference that the court sought to make be drawn in the circumstances. The accused did not bear the onus to prove anything, neither does the law impose upon him the obligation to prove his innocence. It is the State which bears the onus to prove the accused's guilt beyond a reasonable doubt. It is that onus which the State failed to discharge.
It occurs to me that there is a lingering doubt as to whether the accused did commit the offence. Not only is he handicapped as to be unable to dismantle an electric meter and did not have the tools for the job, he also explained that there are several paths in and out of the beer hall. Even Douglas Moyo confirmed that when they went in to investigate they ″entered through the other door.″ So there was more than one entrance which could have been used by a possible culprit to escape.
I conclude therefore that the State did not prove its case beyond a reasonable doubt. The conviction of the accused person for contravening s 60A (3) of the Act was improper.
In the result, it is ordered that:
1. The conviction of the accused person is hereby quashed.
2. The verdict of the Magistrates Court is substituted with the verdict that the accused person is hereby found not guilty of the offence and is accordingly acquitted.
MAKONESE J concurred.
{/mprestriction}
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