State v Mumanyi (423 of 2025) [2025] ZWHHC 423 (14 July 2025)

3 HH 423 - 25 HCHCR 4630/24 JARNEY MUMANYI versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE; 23 June 2025 & 14 July 2025 Chamber application for leave to appeal I Muchini, for the applicant R Chikosha, for the respondent CHIKOWERO J: This is an application for leave to appeal the whole judgement of this Court dismissing the applicant’s appeal against the judgement of the magistrates court convicting him of two counts of stock theft as defined in S114 (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) and the sentence of 9 years imprisonment imposed on him on each count. The court a quo did not order the 9 years imprisonment sentence imposed on the applicant in court two to run concurrently with the like sentence imposed in count one The prosecution’s written response to the application is contained in three sentences. It reads: “BE PLEASED TO TAKE NOTICE THAT respondent does not intend to oppose the relief being sought. Applicant’s case is arguable. Respondent does not suffer any prejudice in casu if the relief sought is granted” There can be no doubt that in filing its response to the application the response should have disclosed the reasons for the position taken on behalf of the Prosecutor - General. At the hearing, Mr Chikosha made brief submissions to justify his concession. We do not share his views. The concession was not properly taken. The intended appeal is manifestly doomed to fail. There was overwhelming evidence against the applicant. No other decision was possible except to convict the applicant of both counts. The intended attack on the sentence is likewise devoid of any prospect of success. The applicant and one Austin Nyepai were found to have stolen seventeen bovines from Pwanyiwa Nzembe’s cattle pen in Buhera during the night of 10 December 2021. During the same night they also stole four bovines belonging to Richard Kususa. The bovines were stolen from the latter’s cattle pen in Buhera. These two incidents constituted the crimes charged as counts one and two respectively. The following facts were common cause. One, the applicant called a transporter to travel from Harare to Buhera to ferry the bovines. Two, the transporter obliged whereupon the applicant, Nyepai and another men then loaded eleven out of the total of twenty bovines into the lorry. Thirteen bovines were abandoned because they were thin. Three, the eleven bovines were loaded in a bush during the same night that the offences were committed. Four, when the applicant and Nyepai were arrested at a police roadblock near Mukamba police station in Wedza ( which was still the same night that the offences were committed) the applicant produced a cattle movement permit and a police clearance certificate both of which did not relate to the bovines which were in that lorry en route to Harare. Five, the cattle movement permit and the police clearance certificate both bore the applicants’ name. Six, an unknown man jumped out of Dzenzi’s lorry at the roadblock and made good his escape. Dzenzi was the transporter.Dzenzi, the applicant and Nyepai were accused one, two and three respectively. Dzenzi was found not guilty and was acquitted. Nyepai met the same fate as the applicant, both in respect of the conviction and the sentence imposed. The applicant’s defence was that he innocently associated himself with Blessed Dzingirai, whom he claimed to be the man who escaped at the roadblock. He said Dzingirai was the owner of the eleven bovines. Further, that the applicant had in hiring Dzenzi to transport the bovines, done so on behalf of Dzingirai, the owner of the bovines. The lower court rejected the applicant’s defence. It found that he had stolen the bovines, hired the transporter, loaded the bovines at night, done so in a bush, was involved in transporting them at night and, when challenged at the roadblock, produced a cattle movement permit as well as a police clearance form (both of which had nothing to do with the clearance and movement of the stolen bovines) as proof that those bovines belonged to him. The proposed grounds of appeal read as follows: “a) Against Conviction The lower Court grossly erred on a point of law in upholding the conviction in a case where the trial court relied on the evidence of a co-accused person to convict the appellant after accepting that the co-accused, an accomplice’s inadmissible evidence corroborated that of the other witnesses.The lower court grossly erred on a point of fact in upholding the conviction by the magistrates court in a case where the evidence was glaring insufficient and unsafe for the following reasons: The identification of the cattle by the complainants was not properly done. The appellant was entitled to the benefit of his defence.The defence of the appellant that the cattle movement and veterinary permits were properly acquired from Sadza Police Station in a previous transaction without having the explanation rebutted by the Sadza Police Officers. One Blessed Dzingirai who was pointed to as the owner of the cattle by the appellant, who fled upon being stopped by the police at Mukamba Police roadblock, had not been accounted for at the time of the trial to rebut the presumption. The circumstances of the case did not warrant the trial court to rely on credibility alone but on proper corroboration by the other police who were at Mukamba and also the Sadza police officer who authored the permits which were recovered from the appellant. The lower court grossly erred in endorsing the conviction where the trial court had grossly erred in dismissing an application to exercise its powers to call the investigation officer, on the erroneous basis that such powers could only be exercised mero motu, and not on application, in a case in which the evidence was crucial.The lower court grossly erred in upholding a conviction which was based on circumstantial evidence, yet the proved facts of the case did not point to the only one reasonable inference that the appellant stole the cattle in question. His explanation that Blessed Dzingirai was the thief, was reasonable and was never rebutted by proper evidence. Against sentence The lower court grossly erred on a point of law in upholding the excessively and unduly harsh sentence by the magistrates court on the wrong premise that a cumulative sentence arising from multiple counts in an offense providing for a mandatory minimum sentence cannot be ordered to run concurrently.The lower court grossly erred in upholding a sentence of the trial court that induces a sense of shock due to its severity, regard being had that all the cattle in question were recovered alive” In the event that leave to appeal is granted, the applicant seeks to pray, on appeal, for the overturning of the decision convicting him. Alternatively, he intends to seek that the sentence be interfered with to the extent that the sentence on count two should be ordered to run concurrently with that imposed on him in count one.An application for leave to appeal should be granted if the intended appeal has a reasonable prospect of success. That is the law in this jurisdiction. See Prosecutor-General v Intratrek Zimbabwe (Pvt) Ltd and Ors 2019 (3) ZLR 106 (S).The applicant’s conviction did not rest on the evidence of Dzenzi. There is sufficient evidence on record, excluding that of Dzenzi, justifying the conviction of the applicant. Most of that evidence was either common cause or weighed heavily against the applicant. Paragraph 7 of this judgement is pertinent in this regard. What the court a quo said about Dzenzi’s evidence as it touched on the applicant’s culpability was incidental. It was not the basis of the applicant’s conviction. The first proposed ground of appeal advances the applicant’s case for leave to appeal not at all. Proposed ground 2 (i) seeks to question the factual finding that there was insufficient evidence of identification of the cattle by the complainants. A factual finding can only be interfered with on appeal if the appellate court is satisfied that the finding was clearly wrong. We think that there is no prospect of the applicant persuading the appellate court to uphold this ground. The bovines were seen in the truck by one of the complainants as they were being taken to the police station. He had gone there to report the stock theft. The identification of the bovines by him and the other complainant at the police station then ensued. The bovines were released to the complainants. The theft itself was not in dispute. The applicant did not claim that the bovines were his. He said they belonged to Dzingirai and that it was Dzingirai who had fled at the roadblock. Even by his own evidence, assuming it was Dzingirai who had indeed taken flight at the roadblock, that fugitive from justice was not the owner of the bovines. He could not be running away from exercising ownership rights over his own cattle. Importantly and correctly so, the lower court found that Dzingirai was not before the court to lay a claim to ownership of the bovines. What this boiled down to is this: nobody laid a competing claim to ownership of the bovines. It would be a futile exercise for the applicant to suppose that anything of substance would flow from proposed ground 2 (i) on appeal.Proposed ground 2 (ii) is irrelevant. The issue is not whether the cattle movement permit and the police clearance certificate were lawfully issued to the applicant in a previous transaction. What the court a quo found is that the applicant produced those documents to Chinete, the police officer manning the roadblock, as proof that the cattle belonged to him by dint of having been cleared by the police at Sadza and a cattle movement permit having been issued to authorise their movement. The police clearance certificate reflected that the bovines had been cleared by a police officer stationed at Sadza Police Station in Mashonaland East Province, yet the bovines in the lorry had originated from Buhera in Manicaland Province. What this means is that the bovines which formed the subject of the two counts were not those reflected on the permit. Indeed, the police clearance certificate included two calves yet there were no calves in the lorry. The animal movement permit had expired. It was issued on 1 December 2021. It was valid for five days from the date of issue. Yet it was being used as cover to move cattle on 11 December 2021. Further, not only the description but also the number of cattle in the lorry differed from those reflected on the permit. For example, there were eleven bovines in the lorry. Nine bovines were reflected on the permit. What this proved was that the cattle in the lorry were not cleared by the police at all and that no cattle movement permit had been issued to the applicant authorizing him to move those cattle. But he was brandishing the two documents to hoodwink the unwary into accepting that these were his bovines and that his papers relating thereto were in order. There was nothing for the police officer at Sadza to rebut. There was no need for the prosecution to produce him to testify as its witness.Similarly, there was nothing for Dzingirai to rebut. If it was him who bolted at the police roadblock, that conduct would only be relevant to his own culpability. As for the applicant, despite asserting that the bovines belonged to Dzingirai, the applicant himself produced a police clearance certificate and a cattle movement permit, bearing his own name, in a bid to convince Chinete that the bovines belonged to him. What this means is that the applicant himself, at the roadblock, was claiming ownership of the bovines. That claim was manifestly false. Chinete observed the anomalies that we have traversed in this judgment and arrested the applicant. That Dzingirai was not among those tried together with the applicant has no bearing to the question of whether the applicant’s proposed appeal enjoys a reasonable prospect of success.We have already explained why there was no need to call the police officer at Sadza Police Station to give evidence for the prosecution. His evidence would have been irrelevant. From Mukamba Police roadblock, the State produced Chinete because it was him who had interacted with the appellant. The prosecution took the view that his testimony, taken together with the other evidence, would suffice. The court a quo shared that view. So did we. There is nothing to suggest that the Supreme Court may think otherwise. The conviction of the applicant was not predicated on findings of credibility alone. There were common cause facts. This was a case where the two counts of stock theft were committed at night. The applicant was arrested while he was not only in recent possession of the stolen bovines but also parading documents which did not relate to those bovines at all.The court is not a party to a criminal trial. It is for the parties to call such witnesses as they think are relevant. A court presiding over a criminal trial should sparingly exercise its power to call its own witness. The court may call a witness where there is need to obtain clarity. It exercises that power mero motu. The present was not a case calling for the exercise of that power.The evidence placed before the trial court was not circumstantial. That nobody saw the offences as they were being committed does not mean that the evidence was circumstantial. It was common cause that the offences were committed. The applicant was arrested in recent possession of the stolen bovines. He lied to a police officer at a roadblock that the bovines were his. To buttress that falsehood, he produced the cattle movement permit and the police clearance certificate that we have already commented upon. He loaded the bovines in a truck deep in the bush and at night. That was the same night that the bovines were stolen from two different cattle pens. He was transporting the cattle at night. That is sufficient evidence that he stole the bovines in question, and that there is no prospect of having his conviction overturned on further appeal. He was deeply involved in the theft, unlawful movement and ultimately the recovery of the bovines that it would be an insult to the intelligence of the appellate court to suppose that there is any chance of having the applicant’s conviction on the two counts quashed. See generally Tombe v The Sate SC 41/25.The mandatory minimum sentence for one count of stock theft, in the absence of a finding of special circumstances, is 9 years imprisonment. The appellant does not propose to quarrel with this. We do not think that a sentence of 9 years imprisonment apiece for two counts of stealing a total of twenty bovines is likely to be interfered with on further appeal. A trial court, in the exercise of its sentencing discretion, may order the concurrent running of all or some mandatory sentences. See S v Huni and Ors 2009 (2) ZLR 432 (H) and S v Pearce 1974 (2) SA 37(R). Here there were only two counts. Several bovines were involved. The applicant was not only a repeat offender but was also the key figure in the premeditation, planning and execution of the offences. The offences were committed by an organized criminal gang. Crime should not be allowed to be a business enterprise. In the exercise of its discretion, the trial court took the view that the offences called for the cummulative running of the two mandatory sentences. We did not think there was a basis for us to interfere. We take the view that there is no reasonable prospect of supposing that a further appeal may yield a different result.The application for leave to appeal be and is dismissed. Chikowero J: ....................................................................... Zhou J: ................................................................................. Agrees Muchini Attorneys, applicant’s legal practitioners The National Prosecuting Authority, respondent’s legal practitioners 3 HH 423 - 25 HCHCR 4630/24 3 HH 423 - 25 HCHCR 4630/24 JARNEY MUMANYI versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE; 23 June 2025 & 14 July 2025 Chamber application for leave to appeal I Muchini, for the applicant R Chikosha, for the respondent CHIKOWERO J: This is an application for leave to appeal the whole judgement of this Court dismissing the applicant’s appeal against the judgement of the magistrates court convicting him of two counts of stock theft as defined in S114 (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) and the sentence of 9 years imprisonment imposed on him on each count. The court a quo did not order the 9 years imprisonment sentence imposed on the applicant in court two to run concurrently with the like sentence imposed in count one The prosecution’s written response to the application is contained in three sentences. It reads: “BE PLEASED TO TAKE NOTICE THAT respondent does not intend to oppose the relief being sought. Applicant’s case is arguable. Respondent does not suffer any prejudice in casu if the relief sought is granted” There can be no doubt that in filing its response to the application the response should have disclosed the reasons for the position taken on behalf of the Prosecutor - General. At the hearing, Mr Chikosha made brief submissions to justify his concession. We do not share his views. The concession was not properly taken. The intended appeal is manifestly doomed to fail. There was overwhelming evidence against the applicant. No other decision was possible except to convict the applicant of both counts. The intended attack on the sentence is likewise devoid of any prospect of success. The applicant and one Austin Nyepai were found to have stolen seventeen bovines from Pwanyiwa Nzembe’s cattle pen in Buhera during the night of 10 December 2021. During the same night they also stole four bovines belonging to Richard Kususa. The bovines were stolen from the latter’s cattle pen in Buhera. These two incidents constituted the crimes charged as counts one and two respectively. The following facts were common cause. One, the applicant called a transporter to travel from Harare to Buhera to ferry the bovines. Two, the transporter obliged whereupon the applicant, Nyepai and another men then loaded eleven out of the total of twenty bovines into the lorry. Thirteen bovines were abandoned because they were thin. Three, the eleven bovines were loaded in a bush during the same night that the offences were committed. Four, when the applicant and Nyepai were arrested at a police roadblock near Mukamba police station in Wedza ( which was still the same night that the offences were committed) the applicant produced a cattle movement permit and a police clearance certificate both of which did not relate to the bovines which were in that lorry en route to Harare. Five, the cattle movement permit and the police clearance certificate both bore the applicants’ name. Six, an unknown man jumped out of Dzenzi’s lorry at the roadblock and made good his escape. Dzenzi was the transporter. Dzenzi, the applicant and Nyepai were accused one, two and three respectively. Dzenzi was found not guilty and was acquitted. Nyepai met the same fate as the applicant, both in respect of the conviction and the sentence imposed. The applicant’s defence was that he innocently associated himself with Blessed Dzingirai, whom he claimed to be the man who escaped at the roadblock. He said Dzingirai was the owner of the eleven bovines. Further, that the applicant had in hiring Dzenzi to transport the bovines, done so on behalf of Dzingirai, the owner of the bovines. The lower court rejected the applicant’s defence. It found that he had stolen the bovines, hired the transporter, loaded the bovines at night, done so in a bush, was involved in transporting them at night and, when challenged at the roadblock, produced a cattle movement permit as well as a police clearance form (both of which had nothing to do with the clearance and movement of the stolen bovines) as proof that those bovines belonged to him. The proposed grounds of appeal read as follows: “a) Against Conviction The lower Court grossly erred on a point of law in upholding the conviction in a case where the trial court relied on the evidence of a co-accused person to convict the appellant after accepting that the co-accused, an accomplice’s inadmissible evidence corroborated that of the other witnesses. The lower court grossly erred on a point of fact in upholding the conviction by the magistrates court in a case where the evidence was glaring insufficient and unsafe for the following reasons: The identification of the cattle by the complainants was not properly done. The appellant was entitled to the benefit of his defence. The defence of the appellant that the cattle movement and veterinary permits were properly acquired from Sadza Police Station in a previous transaction without having the explanation rebutted by the Sadza Police Officers. One Blessed Dzingirai who was pointed to as the owner of the cattle by the appellant, who fled upon being stopped by the police at Mukamba Police roadblock, had not been accounted for at the time of the trial to rebut the presumption. The circumstances of the case did not warrant the trial court to rely on credibility alone but on proper corroboration by the other police who were at Mukamba and also the Sadza police officer who authored the permits which were recovered from the appellant. The lower court grossly erred in endorsing the conviction where the trial court had grossly erred in dismissing an application to exercise its powers to call the investigation officer, on the erroneous basis that such powers could only be exercised mero motu, and not on application, in a case in which the evidence was crucial. The lower court grossly erred in upholding a conviction which was based on circumstantial evidence, yet the proved facts of the case did not point to the only one reasonable inference that the appellant stole the cattle in question. His explanation that Blessed Dzingirai was the thief, was reasonable and was never rebutted by proper evidence. Against sentence The lower court grossly erred on a point of law in upholding the excessively and unduly harsh sentence by the magistrates court on the wrong premise that a cumulative sentence arising from multiple counts in an offense providing for a mandatory minimum sentence cannot be ordered to run concurrently. The lower court grossly erred in upholding a sentence of the trial court that induces a sense of shock due to its severity, regard being had that all the cattle in question were recovered alive” In the event that leave to appeal is granted, the applicant seeks to pray, on appeal, for the overturning of the decision convicting him. Alternatively, he intends to seek that the sentence be interfered with to the extent that the sentence on count two should be ordered to run concurrently with that imposed on him in count one. An application for leave to appeal should be granted if the intended appeal has a reasonable prospect of success. That is the law in this jurisdiction. See Prosecutor-General v Intratrek Zimbabwe (Pvt) Ltd and Ors 2019 (3) ZLR 106 (S). The applicant’s conviction did not rest on the evidence of Dzenzi. There is sufficient evidence on record, excluding that of Dzenzi, justifying the conviction of the applicant. Most of that evidence was either common cause or weighed heavily against the applicant. Paragraph 7 of this judgement is pertinent in this regard. What the court a quo said about Dzenzi’s evidence as it touched on the applicant’s culpability was incidental. It was not the basis of the applicant’s conviction. The first proposed ground of appeal advances the applicant’s case for leave to appeal not at all. Proposed ground 2 (i) seeks to question the factual finding that there was insufficient evidence of identification of the cattle by the complainants. A factual finding can only be interfered with on appeal if the appellate court is satisfied that the finding was clearly wrong. We think that there is no prospect of the applicant persuading the appellate court to uphold this ground. The bovines were seen in the truck by one of the complainants as they were being taken to the police station. He had gone there to report the stock theft. The identification of the bovines by him and the other complainant at the police station then ensued. The bovines were released to the complainants. The theft itself was not in dispute. The applicant did not claim that the bovines were his. He said they belonged to Dzingirai and that it was Dzingirai who had fled at the roadblock. Even by his own evidence, assuming it was Dzingirai who had indeed taken flight at the roadblock, that fugitive from justice was not the owner of the bovines. He could not be running away from exercising ownership rights over his own cattle. Importantly and correctly so, the lower court found that Dzingirai was not before the court to lay a claim to ownership of the bovines. What this boiled down to is this: nobody laid a competing claim to ownership of the bovines. It would be a futile exercise for the applicant to suppose that anything of substance would flow from proposed ground 2 (i) on appeal. Proposed ground 2 (ii) is irrelevant. The issue is not whether the cattle movement permit and the police clearance certificate were lawfully issued to the applicant in a previous transaction. What the court a quo found is that the applicant produced those documents to Chinete, the police officer manning the roadblock, as proof that the cattle belonged to him by dint of having been cleared by the police at Sadza and a cattle movement permit having been issued to authorise their movement. The police clearance certificate reflected that the bovines had been cleared by a police officer stationed at Sadza Police Station in Mashonaland East Province, yet the bovines in the lorry had originated from Buhera in Manicaland Province. What this means is that the bovines which formed the subject of the two counts were not those reflected on the permit. Indeed, the police clearance certificate included two calves yet there were no calves in the lorry. The animal movement permit had expired. It was issued on 1 December 2021. It was valid for five days from the date of issue. Yet it was being used as cover to move cattle on 11 December 2021. Further, not only the description but also the number of cattle in the lorry differed from those reflected on the permit. For example, there were eleven bovines in the lorry. Nine bovines were reflected on the permit. What this proved was that the cattle in the lorry were not cleared by the police at all and that no cattle movement permit had been issued to the applicant authorizing him to move those cattle. But he was brandishing the two documents to hoodwink the unwary into accepting that these were his bovines and that his papers relating thereto were in order. There was nothing for the police officer at Sadza to rebut. There was no need for the prosecution to produce him to testify as its witness. Similarly, there was nothing for Dzingirai to rebut. If it was him who bolted at the police roadblock, that conduct would only be relevant to his own culpability. As for the applicant, despite asserting that the bovines belonged to Dzingirai, the applicant himself produced a police clearance certificate and a cattle movement permit, bearing his own name, in a bid to convince Chinete that the bovines belonged to him. What this means is that the applicant himself, at the roadblock, was claiming ownership of the bovines. That claim was manifestly false. Chinete observed the anomalies that we have traversed in this judgment and arrested the applicant. That Dzingirai was not among those tried together with the applicant has no bearing to the question of whether the applicant’s proposed appeal enjoys a reasonable prospect of success. We have already explained why there was no need to call the police officer at Sadza Police Station to give evidence for the prosecution. His evidence would have been irrelevant. From Mukamba Police roadblock, the State produced Chinete because it was him who had interacted with the appellant. The prosecution took the view that his testimony, taken together with the other evidence, would suffice. The court a quo shared that view. So did we. There is nothing to suggest that the Supreme Court may think otherwise. The conviction of the applicant was not predicated on findings of credibility alone. There were common cause facts. This was a case where the two counts of stock theft were committed at night. The applicant was arrested while he was not only in recent possession of the stolen bovines but also parading documents which did not relate to those bovines at all. The court is not a party to a criminal trial. It is for the parties to call such witnesses as they think are relevant. A court presiding over a criminal trial should sparingly exercise its power to call its own witness. The court may call a witness where there is need to obtain clarity. It exercises that power mero motu. The present was not a case calling for the exercise of that power. The evidence placed before the trial court was not circumstantial. That nobody saw the offences as they were being committed does not mean that the evidence was circumstantial. It was common cause that the offences were committed. The applicant was arrested in recent possession of the stolen bovines. He lied to a police officer at a roadblock that the bovines were his. To buttress that falsehood, he produced the cattle movement permit and the police clearance certificate that we have already commented upon. He loaded the bovines in a truck deep in the bush and at night. That was the same night that the bovines were stolen from two different cattle pens. He was transporting the cattle at night. That is sufficient evidence that he stole the bovines in question, and that there is no prospect of having his conviction overturned on further appeal. He was deeply involved in the theft, unlawful movement and ultimately the recovery of the bovines that it would be an insult to the intelligence of the appellate court to suppose that there is any chance of having the applicant’s conviction on the two counts quashed. See generally Tombe v The Sate SC 41/25. The mandatory minimum sentence for one count of stock theft, in the absence of a finding of special circumstances, is 9 years imprisonment. The appellant does not propose to quarrel with this. We do not think that a sentence of 9 years imprisonment apiece for two counts of stealing a total of twenty bovines is likely to be interfered with on further appeal. A trial court, in the exercise of its sentencing discretion, may order the concurrent running of all or some mandatory sentences. See S v Huni and Ors 2009 (2) ZLR 432 (H) and S v Pearce 1974 (2) SA 37(R). Here there were only two counts. Several bovines were involved. The applicant was not only a repeat offender but was also the key figure in the premeditation, planning and execution of the offences. The offences were committed by an organized criminal gang. Crime should not be allowed to be a business enterprise. In the exercise of its discretion, the trial court took the view that the offences called for the cummulative running of the two mandatory sentences. We did not think there was a basis for us to interfere. We take the view that there is no reasonable prospect of supposing that a further appeal may yield a different result. The application for leave to appeal be and is dismissed. Chikowero J: ....................................................................... Zhou J: ................................................................................. Agrees Muchini Attorneys, applicant’s legal practitioners The National Prosecuting Authority, respondent’s legal practitioners