State v Casper Chikanga and Mavhurambudzi Edson

The two accused persons were charged with two counts of stock theft in contravention of s 114 of the Criminal Law (Codification and Reform) Act. The allegations were that in August 2021, the two accused persons, acting in connivance, stole two beasts that were grazing unattended. They allegedly took the beasts to the second accused's homestead, and the second accused then sold them to one Masango Estoni for US$250.00 and US$310.00. After the owner reported the theft, police recovered the beasts from the purchaser, who then led police to the second accused. Both accused persons pleaded not guilty and denied any knowledge of the stolen cattle or acting in common purpose. The prosecution relied primarily on the testimony of the purchaser (first witness) who claimed he bought the cattle from the second accused and spoke to the first accused over the phone. The purchaser also claimed that the second accused's mother witnessed the transaction and told him the first accused was in the business of selling cattle. The owners of the cattle and the investigating officer also testified, but their evidence was largely based on what the first witness told them.

• Whether the evidence adduced by the State proved the guilt of the accused persons beyond reasonable doubt
• Whether the conviction based on the uncorroborated evidence of a single witness was safe in the circumstances
• Whether the trial court's decision was rational and in accordance with real and substantial justice
• Whether hearsay evidence was properly admitted and relied upon for conviction
• Whether proper investigations were conducted to establish the accused persons' guilt

The convictions of both accused persons on both counts were quashed and the sentences were set aside.

A conviction based solely on uncorroborated hearsay evidence from a single witness, without independent corroboration or proper investigation, does not prove guilt beyond reasonable doubt and constitutes a gross irregularity. While section 269 of the Criminal Procedure and Evidence Act permits conviction on the evidence of a single competent and credible witness, courts must exercise extreme caution, particularly in serious offences, and should not be content with single witness testimony when other witnesses who could provide corroboration are available but not called. Hearsay evidence cannot form the primary basis for conviction when the original source of the information could have been called to testify. Where crucial witnesses (such as alleged eyewitnesses to the transaction) are not called and no explanation is given for their absence, and where key evidence (such as phone records, photographs, or agreements) mentioned in testimony is not produced, the prosecution fails to prove its case beyond reasonable doubt. The benefit of the doubt must go to the accused where the State's evidence consists of contradictory and uncorroborated testimony from a suspect witness.

The court observed that the first witness (purchaser) was himself a suspect witness, having been found in possession of the stolen cattle and having failed to follow proper police clearance procedures for cattle purchases, which he should have been aware of if he genuinely moved around looking to purchase cattle. The court suggested that his testimony may have been designed to save his own skin. The court noted that it was illogical and perturbing that the investigating officer failed to record a statement from the second accused's mother, who was alleged to be a crucial eyewitness, and failed to investigate key aspects such as phone records, the purported agreement of sale, and the photographs allegedly taken by the village headman. The court commented that when cattle are driven from pastures, there are usually many witnesses, and the failure to call any such witnesses or the photographer was a significant investigative failure. The court emphasized that proper investigation of criminal cases will usually uncover corroborating evidence, and exhorted police officers and prosecutors not to be content with single witness testimony.

This case is significant in Zimbabwean criminal law and procedure as it reinforces the strict application of the standard of proof beyond reasonable doubt in criminal cases and the dangers of convicting on uncorroborated single witness testimony, particularly where that testimony consists largely of hearsay evidence. The judgment emphasizes the duty of investigating officers and prosecutors to conduct thorough investigations and not be content with producing evidence from a single witness when other witnesses are available. It serves as an important reminder that while section 269 of the Criminal Procedure and Evidence Act permits conviction on the evidence of a single competent and credible witness, courts must exercise extreme caution and look for corroborating evidence, especially in serious offences. The case also highlights the impropriety of basing convictions on hearsay evidence when the original source of the information could and should have been called to testify. It demonstrates the High Court's review function in correcting grossly irregular proceedings that are not in accordance with real and substantial justice.