Nomsa Kanyoka and Others v The State

Four appellants were charged with theft of ZESA copper cables from an electricity line at the Chapfuche area of Beitbridge, in terms of section 113 of the Criminal Law (Codification and Reform) Act Chapter 9:29. Although the notice of appeal was filed by all four accused, only the 3rd appellant (Phathisani Nkala) pursued the appeal. The appellants were found in a motor vehicle parked at a lay-bye near the place where ZESA cables had been cut. They gave conflicting explanations for being at that location. An experienced tracker (Solomon Sithole) observed tyre marks of the vehicle at the scene of the crime. The vehicle had scratch marks and vegetation similar to that at the crime scene stuck on parts of it. Old receipts in the vehicle indicated previous dealings in copper cables. The accused also called a witness who eventually admitted she was called to give false evidence. A total of 8.1 kilogrammes of copper cables were cut and rolled, and electricity supply was disrupted. The appellants were convicted and sentenced to 8 years imprisonment with labour.

• Whether the circumstantial evidence was sufficient to sustain a conviction beyond reasonable doubt
• Whether the main state witness (tracker) was credible despite alleged inconsistencies
• Whether the magistrate erred in rejecting the appellants' version of events
• Whether the appellants were denied a fair trial including fair cross-examination
• Whether evidence amounting to a confession by a co-accused (5th accused) was improperly admitted and used against the appellant
• Whether the sentence of 8 years imprisonment was excessive

The appeal against both conviction and sentence was dismissed. The conviction for theft and sentence of 8 years imprisonment with labour were upheld.

Circumstantial evidence is sufficient to sustain a criminal conviction when it consists of a set of facts or events which, by undesigned coincidence, point in one direction and lead to a compelling conclusion that leaves no doubt in a reasonable mind. The test is whether the circumstances are capable of proving a proposition with the accuracy of mathematics. When multiple pieces of circumstantial evidence converge - including presence near a crime scene, false and conflicting explanations, physical evidence linking the accused to the scene, and evidence of prior similar conduct - a court is justified in finding guilt beyond reasonable doubt. A confession by one co-accused cannot be used against another co-accused, but if the confession does not implicate the other accused, it does not constitute a basis for appeal by that other accused.

The court observed that theft of electricity cables has serious effects on members of the public, industry and the economy. The court commented that the sentence of 8 years imprisonment was actually lenient given the prevalence of such offences in the area and their impact. The court noted that Solomon Sithole was a very experienced tracker, trained during his time at the National Parks Department, and that even defence counsel acknowledged he was a very good witness. The court also made general observations about cross-examination being the procedural form by which an opponent scrutinizes the credibility of evidence, and that issues about whether an accused understood the purpose of cross-examination can best be raised by the accused person himself during trial rather than later on appeal.

This case is significant in Zimbabwean criminal law for its articulation of the principles governing circumstantial evidence and the standard required for conviction based on such evidence. The judgment provides clear guidance on when a series of circumstances can amount to proof beyond reasonable doubt. It also addresses the serious economic impact of infrastructure theft, particularly theft of electricity cables, and demonstrates the courts' approach to sentencing such offenses. The case reinforces the evidentiary value of expert tracker evidence and the importance of consistency in explanations given by accused persons when found in suspicious circumstances.