Phatisani Nkala v The State

The applicant and others were found at a lay-bye close to the scene where Zimbabwe Electricity Supply Authority (ZESA) electricity cables had been cut off poles at Chapfuche area near Beitbridge, disrupting electricity supply. They were arrested and tried at the Magistrates' Court at Beitbridge and sentenced to 8 years imprisonment each. A security guard, an experienced former Parks and Wildlife tracker, approached their parked vehicle to advise them of dangers in the area. The accused gave inconsistent and false explanations about their presence and destination. Tyre marks from their vehicle were found at the scene where cables were cut. Twigs on the vehicle matched bushes at the crime scene. The applicant was the driver of the vehicle which had come from South Africa. Receipts for selling copper cables in South Africa were found in the vehicle. The group procured a witness who later admitted under cross-examination that she had been procured by the accused to provide false evidence. The appeal to the High Court against conviction and sentence was dismissed, and the applicant now sought leave to appeal to the Supreme Court.

• Whether there were reasonable prospects of success for an appeal to the Supreme Court against conviction
• Whether the evidence sufficiently linked the applicant to the crime of theft and malicious damage to property (cutting ZESA cables)
• Whether the applicant could distance himself from the criminal conduct of his co-accused when he was the driver of the vehicle involved

The application for leave to appeal to the Supreme Court was dismissed.

The binding principle is that in an application for leave to appeal to the Supreme Court under section 44 of the High Court Act, the court must be satisfied that there are reasonable prospects of success on appeal. Where an accused was the driver of a vehicle used in the commission of a crime and cannot provide credible explanation for their presence, they cannot distance themselves from the criminal conduct of the group and may be convicted on the basis of common purpose. Circumstantial evidence linking the accused to the crime scene, including expert tracking evidence, material found in their possession, and false explanations, can be sufficient to sustain a conviction even where the accused was not directly observed committing the offence.

The court noted that a legal practitioner who had represented the accused at an earlier stage had commended the evidence of the tracker witness, suggesting the reliability and credibility of that expert evidence. The court also observed that the procurement of a false witness who later admitted being procured for that purpose reflected poorly on the credibility of the defence case generally.

This case demonstrates the Zimbabwean High Court's approach to applications for leave to appeal to the Supreme Court in criminal matters, particularly the requirement that there must be reasonable prospects of success. It also illustrates the principle of common purpose in criminal law, showing that an accused person cannot distance themselves from criminal activity when they played an integral role (as driver) in the criminal enterprise. The case reinforces that circumstantial evidence, including expert tracking evidence, inconsistent explanations, and possession of receipts for selling similar materials, can be sufficient to sustain a conviction for theft of copper cables from electricity infrastructure.