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HH 488-15
CA 977/12
JOSEPH BANDA
versus
THE STATE
HIGH COURT OF ZIMBABWE
BERE & TAGU JJ
HARARE, 6, 10 and 16 March 2014 and 29 May 2015
Criminal Appeal
D Mtombeni, for the appellant
Ms S Fero, for the respondent
BERE J: His official name is Joseph Banda. In his social circles he was fond of
calling himself Cde Joseph Banda. As a professional he called himself Retired Senior
Assistant Commissioner Joseph Banda. Today he stands as the appellant in this case having
been convicted by a Bindura Magistrate of 15 counts of fraud, as defined in s 136 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23], and a further two counts of
deliberately supplying false information to public authority as defined in s 180 of the same
Act (supra).
On counts 1 – 15, all having been treated as one for purposes of sentence, the
appellant was sentenced to 4 years imprisonment. On counts 16 and 17, both having been
treated as one for purposes of sentence as well the appellant was sentenced to 12 months
imprisonment. The total effective sentence was 4 years imprisonment, the learned magistrate
having ordered the sentences to sum concurrently.
The state counsel in this case, having been furnished with the appellant’s Heads of
Argument and other ancillary documents filed a consent to the appeal. At the hearing of the
appeal itself we unanimously agreed to have the appeal upheld. We did indicate then that our
reasons would follow. These are they.
As a court we are not going to reinvent the wheel. We do not have that luxury. As far
back as 1937 Watermeyer AJA laid down the foundational basis upon which a criminal
conviction has to be anchored. The learned Acting Judge of Appeal laid down the legal
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position that has over the years informed convictions in criminal proceedings. The judge put
it as follows:
“---. It is not a question of throwing any onus on the accused but... it would be a conclusion
which the court could draw if no explanation were given. It is equally clear that no onus rests
on the accused to convince the court of the truth of any explanation he gives. If he gives an
explanation, even if that explanation be improbable, the court is not entitled to convict unless
it is satisfied, not only that the explanation is improbable, but that beyond any reasonable
doubt it is false. If there is any reasonable possibility of his explanation being true then he is
entitled to his acquittal ...” 1
It is with this basic guiding legal position that we have looked at this matter in the
light of the concession made by the respondent’s counsel.
We have thoroughly interrogated the position taken by the respondent of not
supporting the conviction. In doing so, we have been motivated by our combined and
determined desire to avoid any possibility of the miscarriage of justice in this case.
We are satisfied beyond any doubt that the stance taken by the respondent is well
informed in light of the apparent inadequacies in the evidence which characterised the
proceedings in the lower court. In our view it borders on mystery as to how the appellant was
convicted on all the 17 counts that were preferred against him given the shortcomings of the
evidence that was led. That evidence clearly screamed for the acquittal of the appellant.
We will highlight some of the observations made and also confirmed by both counsel.
Throughout the appellant’s testimony in the lower court, he insisted that the
Commissioner General of Police was fully aware of his operations as an undercover officer in
the Reserve Bank of Zimbabwe. On numerous occasions he pointedly challenged the
prosecution to call the Commissioner to confirm his position. His plea fell on deaf ears. Both
the magistrate and the prosecutor were not interested.
The appellant explained how, given his peculiar circumstances he had acquired his
professional title as well as how he came to be referred to as “Cde”. The appellant said that
all these titles were intricably linked to his operations at the Reserve Bank of Zimbabwe and
that to effectively discharge his functions he had to carry these titles. He went on to say that
the Commissioner General of Police was aware of how he executed his mandate and that it
was imperative that he be called to clarify the position.
Given the unchallenged stance taken by the appellant in the lower court, it was not
possible to have him convicted of counts 16 and 17. It was simply not possible.
1
R vs Difford 1937 AD 370 @ 373
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The counts to do with fraud present an even more confusing scenario. In general it is
clear that none of the beneficiaries were called to testify. One is left to wonder whether these
were bona fide beneficiaries or ghost beneficiaries. Why these people were not called to trial
the appellant remains a mystery. It was imperative to establish the status of the beneficiaries
through their testimonies.
It will further be noted that the bulk of the witnesses from Reserve Bank of Zimbabwe
who testified pointed to Musakwa as the possible culprit and witnesses like Mandla and
Makwengwe actually exonerated the appellant and insisted that it was Musakwa who
authorised the distribution of the implements.
The appellant was quite categoric throughout his testimony that whatever he was
doing at the Reserve Bank of Zimbabwe had the full backing of his principal the Governor
who incidentally was not called to rebut his position.
The evidence of one Dr Munyaradzi Kereke who was the advisor to the Reserve Bank
Governor could not possibly have been taken to substitute the Reserve Bank Governor who
the appellant insisted if called would have exonerated him of any wrong doing.
More importantly, it is clear from the record of proceedings that the evidence of Dr
Kereke was not consistent with the evidence of the other Reserve Bank employees
particularly when it came to the position of the appellant. It was therefore a monumental risk
on the part of the court a quo to religiously accept the Doctor’s evidence without exercising
caution.
Whichever way one looks at this matter it was simply not possible to have the
appellant convicted in the lower court. It occurs to us that the convictions were seduced by
genuine mistake in the assessment or consideration of the evidence that was placed before the
lower court.
It was for these reasons that we upheld the appeal against all the counts and ordered
the acquittal of the appellant.
TAGU J agrees _______________________
B Matanga Intellectual Properties Attorneys, appellant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners