MANGOTA J: The appellant was charged with, and convicted
of, the crime of theft as defined in s 113 (1) of the Criminal Law
[Codification and Reform] Act, [Cap 9:23].
The State allegations were that, on 17 November 2012 and at Subdivision 5
Turkey Heart Farm, Lot 4 in Triangle, the appellant took the sum of $54 466.73
which he held in trust for, and on behalf of, a partnership which one Takundwa
Madziva and him formed and converted the amount to his own use. Nothing
of the said sum was recovered, according to the State.
The appellant tendered a plea of not guilty to the charge. He admitted that
Takundwa Madziva and him entered into a partnership for the production and sale
of sugar-cane grown from the land-Subdivision 5, Turkey Heart Farm, Lot 4,
Triangle-which government allocated to the appellant under its Land Reform
Programme. The two, he said, created the partnership in August, 2012 and,
on 3 May, 2012, he terminated the partnership. He stated that he
terminated the partnership when he realised that the agreement violated s 13 of
the Agricultural Resettlement Act. He maintained the position that
neither the partnership which he said was, or is, illegal and, therefore, of no
force or effect or the partnership's representative, Takundwa Madziva, could
successfully cause him to be prosecuted and convicted in a criminal
court. He insisted that the only recourse which remained open to the
purported partnership or to its representative was to approach the civil court
for redress.
The court which tried and convicted the appellant sentenced him as follows:
“3 years imprisonment which are wholly suspended on
condition you restitute the complainant Takundwa Madziva his share of 70% of
$54 466.73 through the Clerk of Court Masvingo on or before 26 September
2013. The 15 months suspended at Triangle court on 9 January 2012 are
further suspended for 5 years on the same conditions.”
The appellant appealed against his conviction. His
main ground of appeal which the State was wise to make a concession to was, or
is, that the partnership which Takundwa Madziva and him formed in August 2010
was illegal and, therefore, no criminal liability could flow from it.
From a reading of the record, there is not doubt that the
parties partnership was the basis of the appellant's arrest, prosecution as
well as conviction and sentence. The said partnership grew sugar-cane on
the appellant's land, sold the same and realised the sum of $54 466.73 which
the appellant, according to the respondent, converted to his own use to the total
exclusion of his partner, Takundwa Madziva. The conduct of the appellant
in the mentioned regard did not go down well with Takundwa Madziva. He
caused the arrest and prosecution of the appellant.
The appellant's argument was or is that the partnership was
a clear violation of the law. He stated that his conviction was not only
improper but was also a serious misdirection on the part of the trial court.
In support of his position in this mentioned regard, the
appellant referred the court to subsections (1) and (2) of s 13 of the
Agricultural Land Resettlement Act [Cap 20:01]. The section
reads:
“Prohibition of cession etc
1. A lessee shall not
(a) ----------
(b) enter into a
partnership for the working of his holding;
2. A transaction entered into
by a lessee in contravention of subsection (1) shall be of no force or
effect” (emphasis added)
The wording of the above cited section is not only clear
and unambiguous but it is also mandatory in nature. There is no doubt
that the appellant falls into the definition of lessee as contemplated by s 13
of the Act. He held and holds the land on which the purported partnership
grew sugar-cane in terms of an offer letter through which Government offered
the land to him. He cannot, in terms of the law, enter into a partnership
with any person(s) for working the land which Government offered to him.
Any purported partnership which he entered into with some person or other in
violation of that clear, unambiguous and mandatory provision of the Act is of
no force or effect.
The State read the law correctly when the appellant filed
an appeal with this court against conviction. It conceded, properly so,
that the appellant's conviction was unsustainable. The court agrees with
both parties in respect of this matter. It, in the premises, has no
option but to sanction the appellant's prayer which the respondent supports.
The court has considered all the circumstances of this
case. It is satisfied that the appellant was erroneously convicted. The
court, in the premise, orders as follows:
1.
That the appeal be and is hereby allowed.
2.
That the conviction and sentence of the appellant be respectively quashed and
set aside.
3.
That the appellant be and is hereby found not guilty and is acquitted of the
charge.
HUNGWE J agrees_____________________
Muzenda & Partners,
appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
