11
HH 547-23
CA 480/19
necessarily constitute a confession to the crime. The appellant was merely abiding by the
judgment of the court which had convicted him. We are not persuaded by the argument. Abiding
by the judgment of the court which has convicted the accused means that the accused person is
entitled to rely on trial court’s findings of fact in mitigation. That the accused uttered the words
as a result of temptation and emotional stress and that he succumbed to temptation and the
circumstances surrounding him was not part of the judgment of the court which convicted him.
Those were facts unknown to the court until he started making submissions in mitigation. The
appellant was, therefore, volunteering information which was peculiarly known to him which he
wanted to be considered as the truth of what transpired. He was, thus, taking the court into his
confidence as a sign of remorse and repentance. See S v Kanongo HH 158/19. His submissions
were accepted by the trial court as true and correct. See S v Ngulube 2002 (1) ZLR 316 (H). His
insistence on appeal that the video is a creation of the state and that he did not utter the words
which form the basis of the appeal was, therefore, not bona fide.
That the appeal against conviction is not bona fide is confirmed by the other telling
admissions made in written and oral argument by appellant’s counsel. He argued that the trial
court erred in convicting the appellant because of the possibility that the appellant spoke with a
forked tongue by saying one thing when he meant another or that he had a secret code which
only his followers could decrypt. He submitted that the words uttered by the appellant should not
be interpreted to be telling anyone to be violent or chaotic. He said there was no evidence
establishing a connection between the appellant’s utterances and the violence which occurred the
following day. The submissions amount to admissions that the appellant was indeed recorded on
video making the utterances. In something akin to confession and avoidance. The appellant’s
counsel was conceding that the video is authentic but sought to show that the appellant did not
mean any harm by the utterances. It does not make sense that the appellant would deny making
the inflammatory utterances and in the next breath admit making them albeit innocently. It is
either he uttered the words or he did not.
It was not necessary for the prosecution to adduce direct evidence connecting the
appellant’s utterances with the violent protests which occurred. In terms of s 187 of the Criminal
Law Codification and Reform Act it is immaterial to a charge of incitement that the appellant’s
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