Judgment No.
04/13
Case No. HCR 45-6/12
X REF HCA 43-4/12
JORAM NGWENYA
And
CLEOPAS MOYO
Versus
FADZAI MTHOMBENI N.O.
And
THE STATE
IN THE HIGH COURT OF ZIMBABWE
KAMOCHA J
BULAWAYO 22 JUNE 2012 & 17 JANUARY 2013
Adv. S. Nkiwane for the applicants
Ms A. Munyeriwa for the respondents
Court Application
KAMOCHA J: The applicants appeared before the regional court in Bulawayo facing a
charge framed in the following manner:-
“Contravening section 131(1) of the Criminal Law (Codification and Reform) Act Chapter
9:23 (Unlawful Entry into Premises and Theft).
In that on the night of 30th of June and 1st of July 2011 and at Matabeleland Taxidermist
Company, Bulawayo, Joram Ngwenya, Ngoma Mangoma and Cleopas Moyo or one or
more of them unlawfully and intentionally entered into the premises of Matabeleland
Taxidermist Company without authority or permission from the lawful occupier and
stole seven elephant tusks the property of Matabeleland Taxidermist Company and in
their lawful custody.”
The facts as outlined by the state were that the applicants were all employed by
Matabeleland Taxidermist Company in Belmont, Bulawayo. On Wednesday 29 June 2011 Joram
Ngwenya, who was the first accused in the criminal trial had been instructed by his superiors to
stop working on the elephant tusks but ignored the instructions. Instead, he allegedly connived
with accused 3 Cleopas Moyo to leave 5 elephant tusks in the skinning room that day and
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Judgment No. 04/13
Case No. HCR 45-6/12
X REF HCA 43-4/12
another 2 the following day which was Thursday. They agreed to leave the 7 tusks in the
skinning room which they knew was insecure as it was not secured by any alarm system. That
was contrary to the company policy which stipulated that elephant tusks were to be left in the
safe which was secured with an alarm system.
Under cover of darkness during the night of 30 June into the morning of 1 July 2011 the
two accused teamed up with accused 2 Ngoma Mangoma who had access to keys to the
premises and proceeded to the premises and used duplicate keys to open the main gate and
then broke into the company skinning room and stole 7 elephant tusks which Joram Ngwenya
and Cleopas Moyo had left there. The seven elephant tusks were valued at US$45 000 and only
one of them valued at US$7 000 was recovered.
All the three pleaded not guilty but accused 1 and 3 were found guilty as charged
despite their protestations. Accused 2 was, however, found not guilty and acquitted. Accused
1 and 3 were each sentenced to undergo 10 years imprisonment of which 3 years imprisonment
was suspended for five years on the customary conditions of future good behaviour.
Thereafter, the two accused engaged the services of legal practitioners who in their
wisdom decided to launch this application for review seeking the following relief:-
“It is ordered that:-
(1) the conviction and sentence of the applicants by the regional magistrates’ court on
the 20th of October 2011 sitting at Tredgold Building in Bulawayo presided by the 1 st
respondent be and is hereby set aside;
(2) the matter be referred back for trial de novo”.
The applicants’ amended grounds for review were based on two issues. Firstly, they
contended that there was no charge called unlawful entry and theft according to the provisions
of section 131 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
Secondly, the applicants alleged that the trial court had denied them the right to
request statements of outgoing mobile phone calls to prove that they had never called Booker
Huni as the court said it was too late to do that.
The record of proceedings, however, does not show where or when the trial magistrate
refused or prevented the production of such evidence. At the hearing Mr Nkiwane who
represented the applicants fairly conceded that the second ground was not going to be
persisted with as it was not borne out by the record of proceedings. It was accordingly
abandoned and nothing turns on it.
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Case No. HCR 45-6/12
X REF HCA 43-4/12
In as far as the remaining ground for review is concerned, there is some substance in the
contention that there is no longer a combined crime of unlawful entry and theft. These are
now two separate offences in terms of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
Theft simpliciter is found in section 113 of the Act while unlawful entry into premises is
to be found in section 131.
The allegations in casu were that the applicants unlawfully entered the premises and
while inside they stole seven elephant tusks therefrom. When they unlawfully entered into the
premises their main purpose was to remove the seven elephant tusks which they had placed in
the skinning room. They went there to commit a crime thereby aggravating the crime of
unlawful entry into premises. See section 131 (2) (c). It was not proper to frame the
indictment the way it was done in this case.
What then was the effect of framing the charge in that manner? Does such irregularity
warrant the setting aside of the proceedings and referral of the case back to the court a quo for
a trial de novo?
For this court or judge of this court to quash or set aside a conviction or sentence by
reason of any irregularity or defect in the record or proceedings the court or judge must be
convinced that a substantial miscarriage of justice has actually occurred. See section 29(3) of
the High Court Act Chapter 7:09. I am far from being convinced that any miscarriage of justice
let alone a substantial one actually occurred in this case.
Were the applicants prejudiced in anyway by the sentence imposed on them? The
answer is No. A person convicted of unlawful entry into premises in aggravated circumstances
is liable to imprisonment for not more than 15 years. The trial court was within its powers
when it sentenced each accused to 10 years imprisonment of which 3 years imprisonment was
suspended on the usual conditions of future good behaviour.
In conclusion, I hold that he irregularity cited by the applicants does not warrant the
quashing or setting aside of the conviction or sentence. I would, in the result, dismiss the
application with costs.
Mlweli Ndlovu & Associates applicants’ legal practitioners
Attorney-General’s Office respondents’ legal practitioners
