Section 184 of the Criminal Law (Codification and Reform) Act No 23 of 2004 provides for offences which constitute defeating and obstructing the course of justice.
In terms of paragraph (d) of subsection (1) of that section, any person who, knowing that a police officer is investigating the commission of a crime, by any act causes such investigations to be defeated or obstructed, intending to defeat or obstruct the investigation, shall be guilty of defeating or obstructing the course of justice.
Ignatius Mugova, the Chinhoyi magistrate who dealt with the case of State v Nomatter Tagarira (also known as Portia Mavhunga) and two others, made the following statements in his judgment:
“However, the court does not have evidence that the sample examined in exhibit 4 indeed originated from Maningwa hills.
(Registrar General) Tobaiwa Mudede should have testified to that effect.
This court cannot take it as common cause.
From the evidence of Rotina Mavhunga it is abundantly clear that Tobaiwa Mudede had an interest in the matter.
Whether it was for the benefit of the nation or himself it’s unknown to this court.
Further, the court noted something disturbing about his behaviur.
As the police sought Rotina Mavhunga, Tobaiwa Mudede kept her in hiding and fed her.”
Clearly, there was evidence before the court that Mudede kept the accused in hiding and fed her while the police were looking for her, because they were investigating the commission of a crime by the accused.
Mudede must have known that the police were looking for her or why else would he be “hiding” her?
The magistrate, not surprisingly, found Mudede’s conduct to be “disturbing”.
The police should have appreciated the concern of the magistrate and investigated the matter in order to ascertain why Mudede was hiding the accused when the police were looking for her.
The magistrate also commented that it was “abundantly clear” that Mudede “had an interest in the matter” and it was unknown to the court whether his interest was “for the benefit of the nation or for himself”.
The accused, in her defence outline, said that of the 400 litres of diesel that were taken up to the Maningwa hills to dupe senior government ministers Nelson Samkange, Didymus Mutasa, Kembo Mohadi and Sydney Sekeramayi and Deputy Police Commissioner Godwin Matanga, she got 125 litres from Mudede.
Section 195 of the Criminal Law (Codification and Reform) Act No 23 of 2004 defines an accomplice as being any person, other than the actual perpetrator of a crime, who, incites or conspires with the actual perpetrator to commit the crime, with the result that it is subsequently committed or who, knowing that the actual perpetrator intends to commit the crime, renders any form of assistance which enables or assists the actual perpetrator to commit the crime.
The accused was charged with, and convicted of, fraud.
An essential element of the crime she committed was the availability of diesel so that she could fool the ministers and the police deputy commissioner, that it was coming from the rocks.
Without the diesel, she would not have been able to achieve anything.
Since Mudede supplied a substantial portion of the diesel that she used in her scam, he should at least have been questioned by the police as to why he gave her the diesel.
According to the findings of the magistrate, it was “abundantly clear” that Mudede had an interest in the matter.
It is difficult to believe that Mudede was unaware of what the accused was up to.
He knew her before she started her scam and he gave her 125 litres of diesel to assist her.
Then when she was exposed he took her into hiding and fed her.
Surely the police should have investigated his involvement.
Justice Smith is a retired High Court of Zimbabwe judge writing in his own capacity.