The
appellant was convicted of theft of trust funds as defined in section
113(2)(d)
of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
[“the
Code”].
The amount involved was $2,500=….,.
The
Law Society of Zimbabwe (LSZ)…, brought to the police' attention
the provisions of section 20 of the Legal Practitioners Act [Chapter
27:07].
In a nutshell, this provision restores, or affirms, ...
The
appellant was convicted of theft of trust funds as defined in section
113(2)(d)
of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
[“the
Code”].
The amount involved was $2,500=….,.
The
Law Society of Zimbabwe (LSZ)…, brought to the police' attention
the provisions of section 20 of the Legal Practitioners Act [Chapter
27:07].
In a nutshell, this provision restores, or affirms, inter
alia,
a legal practitioner's common law right of set-off against, or upon
moneys held, or received by him/her on account of another person….,.
The
magistrate held that the provisions of section 20 of the Legal
Practitioners Act [Chapter
27:07]
did not apply to his situation because, if after a dispute arises on
a legal practitioner's fee, it must first be referred for taxation
before the legal practitioner can exercise his or her right of
set-off; something that the appellant had failed to do….,.
Section
113[2][d]
of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the
Code) defines theft of trust property as follows:
“[2]
Subject to subsection [3], a person shall also be guilty of theft if
he or she holds trust property, and, in breach of the terms under
which it is so held, he or she intentionally
-…,.
[a]…,.;
or
[b]…,.;
or
[c]….,.;
or
[d]
Converts the property, or part of it, to his or her own use.”…,.
Sub-section
[2] above says it is subject to sub-section [3]….,. The sub-section
says:
“[3]
Subsection [2] shall not apply if -
[a]
The person holding or receiving the property has properly and
transparently accounted for the property in accordance with the
terms of the trust; or
[b]..,.”…,.
What
the court a
quo
failed to grasp was that the appellant's defence was a claim of
right to the money, by means of set-off, both in terms of section
113[2][d],
as read with section 113[3] of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (the Code) and section 20 of the Legal
Practitioners Act [Chapter
27:07].
Section
20 of the Legal Practitioners Act is in Part IV of that Act that
deals with trust accounts. It is Part IV of the Act that sets out the
do's and dont's in the opening and running of trust accounts by
legal practitioners. There are certain penalties for misconduct in
relation to the misuse of trust account funds. But section 20 of the
Legal Practitioners Act [Chapter
27:07]says:
“20
Saving of set-off, etc.., against trust account
Nothing
in this Part contained shall be construed so as to take away or
affect a just claim, lien, counterclaim, right of set-off or charge
of any kind which a registered legal practitioner may, at common law
or in terms of an enactment have against or upon moneys held
or received by him on account of another person.”….,.
Thus,
contrary to the reasoning of the court a
quo…,
a legal practitioner's right of set off, if it exists under the
common law, is not eroded by anything else said under Part IV of the
Legal Practitioners Act [Chapter
27:07].
The legal practitioner does not require the consent of the client
before he exercises the right of set off. The section does not say
that the client must first agree with the fee before the legal
practitioner can exercise set-off. It does not say the legal
practitioner must first trace the source of the funds in the trust
account for the client before he or she can exercise set off. If the
conditions for set-off under the common law exist, his or her
exercise of the right is a unilateral act.
Counsel
for the State argued that in the appellant's case, the conditions
for set-off under the common law did not exist because there were no
two debts that could be said to have been mutually in existence and
due for payment at the same time. He said the debt due to the
appellant was owed by Mr
Rambanapasi.
Yet the appellant took money that belonged to the complainant who
owed him nothing….,.
Counsel's
argument above could probably gain traction in a Civil Court. There,
the rights and obligations of the litigants are balanced against each
other on
a preponderance of probabilities.
Not in a Criminal Court. Here the guilt of the accused to the crime
charged has to be proved, not only by showing the existence of the
two components, actus
reus
and mens
rea,
but also by proving them beyond any reasonable doubt.
