Joseph Chiurugwi v Sam Levy and Detective Inspector Tsetse and The Commissioner of Police

The applicant, a Colour Sergeant in the Zimbabwe National Army and new farmer allocated Donnington Farm under the Government resettlement scheme, was arrested on 19 December 2003 on suspicion of stealing cattle from Lilifordia Estates (Pvt) Ltd, owned by the first respondent. The police impounded and removed more than 40 cattle (disputed between 45-49 head) from Donnington Farm to Beef Master Farm for safekeeping as exhibits pending criminal trial. On 8 January 2004, police, a Veterinary Surgeon, and Ministry of Health personnel inspected the cattle in the presence of the applicant and his legal practitioner, and the animals were video-taped and identified. The applicant brought an urgent application seeking custody of the cattle, proposing they be kept at Parachute Regiment Farm under police guard, arguing it was undesirable for the complainant to keep the exhibits due to risk of interference.

• Whether a criminal suspect should be granted custody of exhibits (cattle) pending criminal trial
• Whether it is appropriate for a complainant in a criminal matter to retain custody of disputed property as exhibits
• What constitutes appropriate safeguarding of exhibits in criminal proceedings involving livestock
• Whether the police took reasonable precautions to prevent interference with exhibits

The application was dismissed with costs.

It is contrary to public policy for a criminal suspect to be allowed to keep property he is alleged to have stolen as exhibits pending trial. Where neither the accused nor complainant is an ideal custodian of exhibits, and no viable neutral alternative exists, it is a lesser evil for the complainant to retain custody rather than the accused, as the accused is more likely to interfere with the exhibits. Police precautions such as inspection by relevant experts, video recording, and identification of exhibits in the presence of the accused and his legal practitioner constitute reasonable measures to prevent interference with exhibits.

The court noted in passing that the applicant vacillated in his affidavit between stating there were 49 and 45 cattle, but observed that the exact number was not necessary to resolve at that juncture as the gravamen of the application was not the number of cattle involved but who should keep them pending trial. The court also commented that while it is generally undesirable for a complainant to keep exhibits of disputed property, the peculiarities of circumstances may sometimes necessitate this arrangement.

This case establishes important principles regarding custody of exhibits in criminal proceedings in Zimbabwe, particularly where the exhibits are livestock requiring ongoing care and maintenance. It addresses the balance between preventing potential interference with evidence by complainants and the policy against allowing criminal suspects to retain custody of allegedly stolen property. The judgment provides guidance on what constitutes reasonable police precautions to safeguard exhibits, including inspection, identification and video recording procedures. It also deals with the practical difficulties of finding neutral third parties to hold exhibits when neither the police nor other state agencies have the resources to do so.