State vs Mketisi (HCC4/26) [2026] ZWCHHC 4 (9 February 2026)

3 HCC 4/26 HCCR 1542/25 REF CRB: CHNCD 906/25 THE STATE Versus MATHIAS MKETISI IN THE HIGH COURT OF ZIMBABWE **BACHI MZAWAZI J** CHINHOYI, 2 February 2026 **Criminal Review** **BACHI MZAWAZI J** : The accused was charged and convicted for contravening s10 of the Copper Control Act [Chapter 14:06], as read with, s 6 of the Copper Control [Amendment Act, No.6 ,2022]. The offence attracts a mandatory minimum penalty of ten years imprisonment without an option of a fine, in the absence of special circumstances. According to the State papers, accused had been apprehended by the members of the public on allegations of attempted rape after a rejected love proposal to an unidentified girl. Upon attending the scene, the police then searched the suspect and discovered the copper wires stashed in his bag. The wires were later weighed to be 0.40 kilogrammes as per the certificate of weight produced in court. For reasons not made part of the record, the rape allegations just fizzled into thin air leading to the arrest on charges of unlawful possession of copper wire without a satisfactory explanation. From the onset, the accused gave a defence upon arrest which he stuck to throughout his trial, that he had picked the wires by the tarmac side at _Bhachi_ Compound, Banket, on the 22nd of April, 2025. It is a settled position of the law that the accused person bears no onus to prove his explanation.1 The burden of proof lies with the State as explicitly captured in s18 of the Criminal Law Codification and Reform Act [Chapter 9:23].2 This is well articulated, in the often quoted _locus classicus_ case of _R_ v _Difford_ 1937 AD at 373 by GREENBERG, that: “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.” It is clear that, the single State witness, the arresting officer, Jeffrey Seventy’s evidence corroborated the accused’s defence that he had picked the wires by the roadside. No other investigations were done to test the veracity of this explanation or of any theft of copper wires in the vicinity or in nearby farms. The trial court convicted the accused person on the basis of an admission he later made under cross-examination, that he knew that he was in possession of copper wires and that he intended to sale them. The court reasoned that this admission meant, the State had proved its case beyond a reasonable doubt and satisfied the inference that there was reasonable suspicion that the copper had been stolen. Accused was found guilty as charged and to be sentenced in terms of s6 of the Copper Control Amendment [Act, No. 6 of 2022](/akn/zw/act/2022/6). Since, the penalty to be imposed was outside the sentencing jurisdictional scope of the trial Magistrate she referred the proceedings to the Prosecutor General’s office in terms of s54(2) Magistrates Court Act [Chapter 7:10], s 225 (b) of the Criminal Procedure & Evidence Act [Chapter 9:07]. In turn, the prosecution made an opinion as they are enjoined to do in terms of 225(b) above and returned the record. It was then forwarded to this court for the purpose of sentence in terms of s226 of the said Act. This called for not only the imposition of the sentence but for reviewal of the proceedings as well. However, we agree with the observations made by the prosecution which we large expand herein. On analysis, only one issue arises. Whether or not the conviction is in accordance with real and substantial justice? Section 10 of the Coper Act reads: Failure to give satisfactory account of possession of copper: ‘Any person who is found in possession of copper in regard to which there is a reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable to a fine not exceeding level eight or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.’ Amended by s6 of Copper Control Act Amendment No 6 of 2022. In that regard, the essential elements to be proved are: 1. being found in possession of copper 2. there being reasonable suspicion that it has been stolen 3. the accused being unable to give a satisfactory account of such possession In essence what needs to be proved beyond a reasonable doubt is, was the accused found in possession of copper? Was there reasonable suspicion that the copper was stolen? Did he give an explanation as to the possession? Was the account given satisfactory? It is not issue that the accused was in possession of copper wire. Again, it is on record that he accounted for the wire. The accused had no onus to prove his explanation that he picked the wire. The trial court’s conviction of the accused was based on an inference. The drawing of an inference, which is from indirect or circumstantial evidence is legally permissible. However, the inference drawn must be drawn from proved facts exclusively pointing to the guilty of the accused person as outlined in, _Wilson Muyanga v the State_ HH179/13, and reaffirmed by the Supreme Court, in the case of _Simango v the State_ SC42/14. The arresting details should have investigated whether there was theft of copper wires or that the wires the accused had, had been stolen, if at all they had formulated a reasonable suspicion that the wires had been stolen. In the absence of further supporting evidence buttressing the suspicion of theft, the mere admission by the accused of knowledge that he was in possession of copper wires without a licence and was to sell them, was not sufficient evidence to prove that the wires had been stolen. His explanation that he had picked the copper wire without any rebuttal evidence led was therefore plausible under the circumstances. I share the sentiments by Mafusire J, (as he then was), in _S v Masiiwa_ HMA 9/17, where in a similar case, he stated that; “There are several elements to this offence. It is not just mere possession that is criminalised…. There was no evidence at all that the police suspected that the copper had been stolen". Mere suspicion alone is not proof or evidence; it is merely a "hunch" that forms the basis of investigation to dig up the evidence.” Similarly, in this case like that of _Masiiwa_ above, there was only possession. There was no evidence at all that the police suspected that the copper had been stolen. None of this was investigated. Thus, it follows that except for possession, none of the other elements of the offence under section 10 was proved. S v _Kayimbanemoyo_ 1997(1) ZLR 211, held that, A court cannot make a finding on the satisfactoriness of an explanation in the absence of evidence from the person who formed the suspicion. In my view, it is in the interests of justice that, in offences of this nature, that invariable attract mandatory statutory penalties, courts are enjoined to ensure that all the essential elements of the offence are proved beyond a reasonable doubt. Failure to do so is not only a misdirection but a great injustice. The learned Judges of appeal, Hungwe and Mushore JJ in a celebrated judgment penned by Hungwe J, as he then was, in, _Arnold Bvuto v the State_ HH94/18, when speaking to the irregularities in recording essential elements of a criminal offence and the rights of an accused to a fair trial, opined that, In this regard, in the case of _Bvuto (supra_) the following appears _per_ HUNGWE J (as he then was) a p 7 of the cyclostyled judgment: “Clearly, the appellants right to a fair hearing were prejudiced by the approach the trial court adopted ---. In all offences for which a minimum mandatory sentence is prescribed, it is an infringement for a trial court to fail to advise an unrepresented accused person of his or her right to legal representation, at his own expense, by a legal practitioner of his choice, or if he cannot afford one to be represented by a legal practitioner assigned by the State at the States expense if substantial injustice would otherwise occur. Section 70 (1) (d) and (e) of the Constitution of Zimbabwe. These rights are entrenched for the obvious reason, to protect, to promote, to uphold and to ensure the realization of the accused’s fair trial rights.” **Disposition** The court erred in drawing an inference where there were no proved facts, at all pointing to the guilty of the accused or supporting the conclusion it made. The conviction did not only fail the mark of being not in accordance with real and substantial justice, but was unsafe. Accordingly, it is ordered: 1. The whole judgment of the court aquo is set aside. 2. Both the conviction and sentence are quashed. 3. The accused is found not guilty and acquitted. 4. A warrant of liberation is forthwith issued. **Bachi Mzawazi J** ** Muzofa J, agrees** _National Prosecuting Authority_ _, the State’s legal practitioners_ 1 _S v Chidunga, SC 21/02, S v Bezuidenhout SC 122/02, Kombayi v Berkhout 1988 (1) ZLR 53 Jimmy Mupande vs the State SC_ _82-1_ 2 In addition, s18 of the Criminal Law Codification and Reform Act [Chapter 9:23], succinctly spells out that no person shall be held to be guilty of a crime in terms of the Criminal law Code or any other enactment, unless each essential element of the crime is proved beyond a reasonable doubt and except where enactment specifically says so.