6
HH 547-23
CA 480/19
crime which was (were) not proved. It is therefore, too generalised and, based on it, the appellant
could advance any argument. We find it invalid and strike it off.
The appellant’s argument on appeal with regards to the rest of the grounds of appeal
against conviction.
The appellant’s counsel made the following written and oral arguments in motivating the
appeal against conviction. The trial court erred and therefore misdirected itself by placing
reliance on a contested video evidence, to convict the appellant, without giving reasons for
treating the video as authentic. The trial court was required, at law, to but failed to give reasons
for its decision to rely on the video because the appellant had had contested its authenticity. The
failure by the court to give reasons was a misdirection which vitiated the conviction. As authority
for the argument appellant’s counsel cited Gwaradzimba v Petron and Company (Pty) Ltd (S)
2016 (1) ZLR 28 and S v Makawa & Anor 1991 (1) ZLR 142.
The appellant’s counsel also argued that a feature peculiar to tape recordings is that they
could be altered (and materially altered), in such a way that even experts cannot detect the
alteration. It is quite possible to edit out material from a tape recording, without an expert being
able to detect that an edit had occurred. See S v Tvangirai 2004 (2) (H) ZLR 210. The trial court
ought, therefore, to have determined the authenticity of the video before relying on it. In doing
so, the court a quo would have then applied the guidelines and principles set out in the case of S
v Ramgobin and Others 1986 (4) SA 117 (N) and applied in this jurisdiction in the Tvangirai
case, supra. The failure by the trial court to give reasons for relying on the video, therefore meant
that the authenticity and reliability of the video evidence remained in doubt. T he possibility that
video may have been edited before uploading onto YouTube, was not eliminated by any evidence
at the trial and that, too, made the conviction unsafe.
The appellant’s counsel also submitted that expert evidence is characteristically opinion
evidence. On the authority of the case of S v Motsi 2015(1) ZLR 304 (H) and S v Fombe 2013,
the appellant’s counsel argued that the role of the expert was to help the court understand and
determine a fact in issue. In order to be cogent and useful the expert evidence ought to have
satisfied the certain requirements. In considering the weight to place on expert evidence the court
takes into account the following: -
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