Makomborero Haruzivishe v The State

On 5 February 2020, at the corner of First Street and Nelson Mandela Street in Harare, the appellant was alleged to have incited public violence by whistling and throwing stones at police officers, and to have resisted arrest by a police officer called Rayson Davison. The magistrates court convicted the appellant on Count 1 (inciting public violence under s 187(1)(a) read with s 36 of the Criminal Law Code) and sentenced him to 24 months imprisonment with 10 months suspended. On Count 2 (resisting a peace officer under s 176 of the Criminal Law Code), he was sentenced to 12 months imprisonment with 6 months suspended, to run concurrently with Count 1. The appellant appealed both conviction and sentence.

• Whether the trial magistrate misdirected herself in finding the prosecution witnesses credible despite fundamental contradictions in their testimony
• Whether the convictions were safe given that they were based on a defective record of proceedings
• Whether the High Court should interfere with credibility findings of the trial court on the basis of the record
• Whether the evidence established the elements of inciting public violence and resisting arrest beyond reasonable doubt

The appeal against both convictions was allowed. The convictions were quashed and the sentences set aside. The appellant was found not guilty and acquitted on both Count 1 (inciting public violence) and Count 2 (resisting a peace officer).

An appellate court will interfere with a trial court's findings of fact based on credibility assessments where: (1) there is something grossly irregular in the proceedings; (2) the trial court relied on a defective or incomplete record of proceedings to render judgment; (3) the record reveals fundamental contradictions in witness testimony that go to the root of the matter and give a different complexion to the case; and (4) the trial court's judgment is based on an incorrect appreciation of the evidence or patently wrong facts. Where a key prosecution witness gives two mutually exclusive versions of events and claims both are true, such a witness cannot be regarded as credible. Convictions cannot be sustained where the evidence contains contradictions of such magnitude that they undermine the essential elements of the charged offences. A person cannot be convicted of resisting arrest by a particular officer if that officer did not effect the arrest.

The Court noted that given its findings on the credibility of Davison's evidence and the fundamental contradictions therein, it was unnecessary to address the evidence of the second prosecution witness, Name, or the trial court's findings of fact in relation to that witness. The Court emphasized that the judgment rendered by the magistrate was "not thorough," suggesting that trial courts must carefully analyze witness testimony and identify contradictions before making credibility findings. The Court's reference to the witness's claim that both mutually exclusive versions were true as "surprising" reflects judicial disapproval of such obviously incredible testimony.

This case is significant in Zimbabwean criminal law and procedure for several reasons: (1) It reinforces the principle that appellate courts will interfere with trial court credibility findings in exceptional circumstances where the record reveals fundamental irregularities; (2) It emphasizes the critical importance of accurate and complete court records, demonstrating that convictions based on defective records cannot stand; (3) It illustrates the standard for assessing witness credibility where a witness gives mutually exclusive versions of events and the impact of fundamental contradictions that go to the root of the matter; (4) It reaffirms that where prosecution evidence contains contradictions of such magnitude as to give a different complexion to the case, the benefit of the doubt must favor the accused; (5) It demonstrates the requirement that all elements of an offence must be proved beyond reasonable doubt, and that where a key element (such as who effected the arrest in a charge of resisting arrest) is not established, conviction cannot stand.