HB 038-18 JAPHET DUBE versus THE STATE

JAPHET DUBE

versus

THE STATE

 

HIGH COURT OF ZIMBABWE

MATHONSI AND TAKUVA JJ

BULAWAYO 19 FEBRUARY 2018 AND 22 FEBRUARY 2018

 

Criminal Appeal

 

R Ndlovu for the appellant

T Hove for the state

 

            MATHONSI J:          The appellant is a 63 year old villager with a homestead in Mbuso Village under Chief Bango in Kezi Matabeleland South.  He was charged with two counts of stock theft which allegedly occurred at Mangwe ranch and at Grillman grazing area in Kezi but for some strange reason he was tried at Gwanda Magistrates court instead of Kezi Magistrates court under whose jurisdiction the offences were allegedly committed.  One of the complainants, Alfred Maseko, admitted in court that the transfer of the case followed a complaint he had raised against both the police and the public prosecutor for Kezi after they had refused to prosecute the appellant insisting that the facts suggested that it was a civil dispute which should have been resolved by the civil court.

            Going through the record, it becomes apparent why the prosecution was disinclined to prosecute the appellant as shall become clearer later.  This court has in the past bemourned the coercion of public prosecutors to institute public prosecutions against individuals even where they are not convinced that any offence was committed or that the evidence uncovered by investigations is sufficient to secure a conviction.  See S v Revesai HB 135-17.  A police officer should only arrest a suspect in terms of s25 of the Criminal Procedure and Evidence Act [Chapter 9:07] when he or she has a reasonable suspicion that an offence has been committed.  By the same measure a public prosecutor has a right to decline to prosecute a suspect where there is no evidence to secure a conviction.

            What is clear is that from its inception this case did not find favour with the prosecution.  The investigating officer did not initially arrest the appellant after attending the scene because he 

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