On 6 November 2024, at TM Hyper Supermarket in Bulawayo, the appellant and the complainant (Petros Sibanda, a commuter omnibus conductor) were involved in a minor road traffic accident in which their vehicles collided. The complainant attempted to persuade the appellant not to involve the police because neither vehicle was seriously damaged. The appellant refused to speak with the complainant, stating he had no business talking with a conductor. The State alleged that the appellant then disembarked from his vehicle and slapped the complainant twice on the left cheek with an open palm. The complainant sustained a swollen cheek but was not medically examined. The driver of the commuter omnibus, Maqhawe Bhebhe, corroborated the complainant's version. The appellant denied the assault, claiming he remained in his vehicle until police arrived and that the complainant fabricated the allegations because the appellant insisted on calling the traffic police. The appellant's nephew, Winston Tambana, corroborated the appellant's version.
The appeal against conviction was dismissed. The conviction and sentence imposed by the magistrate's court (a fine of $100.00 or in default 3 months imprisonment) were upheld.
1. The essential elements of assault under section 89 of the Criminal Law (Codification and Reform) Act do not require proof of visible injuries or physical harm. The mere intentional application of force on the person of another without consent is sufficient to establish the commission of assault. 2. Factual findings are the province of the trial court and will not be interfered with by an appellate court unless shown to be so outrageous in their defiance of logic that no reasonable court applying its mind to the matter could have arrived at such a conclusion (irrationality in the Wednesbury sense). 3. Proof beyond reasonable doubt does not require absolute certainty but rather a high degree of probability that leaves no reasonable doubt in the mind of a reasonable person. The State is not obliged to eliminate every conceivable avenue of escape or account for remote or fanciful possibilities. 4. While an accused bears no onus to prove innocence, a court may factor in falsehoods by an accused in deciding whether to give the benefit of the doubt, and false statements can be used to draw inferences of guilt from other reliable evidence.
The court observed that it seemed illogical that after an accident in which the appellant's vehicle was possibly damaged, the appellant would not even exit his vehicle to examine possible damages. The court also commented that if the appellant had genuinely only insisted on calling the police, there would have been no reason for the complainant to falsely allege assault. The court noted that the reason advanced by the appellant as to why the complainant was falsely incriminating him was incredible and added to the falsehoods which made his defence unbelievable. The court also noted that in some instances, an assault may be proved where an accused simply points at another, illustrating the broad scope of what constitutes assault.
This case reaffirms important principles in Zimbabwean criminal law regarding: (1) the standard of proof beyond reasonable doubt in criminal matters; (2) the elements required to prove assault under section 89 of the Criminal Law (Codification and Reform) Act, specifically that visible injuries are not required; (3) the high threshold required for appellate courts to interfere with factual findings of trial courts; (4) the principle that false statements by an accused can be used to draw inferences of guilt from other reliable evidence; and (5) the role of corroborative evidence in strengthening the State's case. The case also demonstrates judicial approach to credibility assessments and the weighing of competing versions in criminal trials.