GOWORA JA: On 14 October 2009 the appellant was found guilty of one
count of fraud by the magistrate court. The
matter was referred to the Attorney-General on the question of sentence. On 25 January 2010 the High Court confirmed
his conviction and sentenced him to 7 years imprisonment, of which one year was
suspended on condition of good behavior. He has already served the sentence in
full. The appellant now appeals to this
court against both conviction and sentence.
The
following facts were established before the magistrate. The appellant is a businessman of some
fifteen years standing. He is the owner
of a company called Defiant Property Management, a private company duly
registered as such under the laws of Zimbabwe. The appellant, through his
company, acts as a middleman in “getting people selling property together”. He is not a registered estate agent.
Sometime
in January 2008 the appellant caused an advertisement to be flighted in the
Chronicle newspaper in respect of an immovable property known as 4051 Nketa
Drive Bulawayo. The complainant, one
Doris Dewa, responded to the advert.
After viewing the property in question the complainant made arrangements
with the appellant to meet with the seller on 24 January 2008 at the
appellant's business premises.
The
parties duly met as scheduled. Present
at the premises of the appellant's company was one Mpilo Nyathi (Nyathi) who
identified herself as Magdalene Sibanda, the seller. An identity document and an original Deed of
Transfer bearing the names of the said Sibanda were exhibited to the complainant. The complainant made an offer for the
property and on 28 January 2008 the parties concluded an agreement of sale for
the property. The seller was identified
on the agreement of sale as Magdalene Sibanda.
Upon signing of the agreement, the complainant paid the purchase price
in full and the title deeds were surrendered to her.
The
appellant advised the parties to engage lawyers for purposes of effecting transfer
of the property to the complainant. Thereafter the complainant attempted on
several occasions to contact Nyathi to have the property transferred into her
name and without success. She then
visited the property in question at which juncture she met the owner of the
property, one Sibanda who denied any knowledge of the transaction. Upon realizing
that she had been duped she made a report to the police leading to the arrest
of the appellant and Nyathi on allegations of fraud. Subsequently, the two were jointly
charged in the magistrates court with one count of fraud as defined in s 136(a)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
At their initial arraignment before the
magistrate, Nyathi pleaded guilty to the offence. The appellant denied the charge. The trials were separated and Nyathi was duly
convicted on her plea of guilt. She was sentenced to a term of imprisonment for
36 months, with 6 months suspended on conditions of good behaviour.
After
a trial in which Nyathi appeared as a witness on behalf of the prosecution the
appellant was duly convicted on the charge of fraud. The magistrate considered that the offence
merited a sentence beyond his jurisdictional limits and referred the matter to
the Prosecutor General for his decision on the question of sentence in terms of s 54 (2) of the Magistrates Court
Act [Chapter 7:10], which reads in
relevant part:
“54 Stopping and conversion of trials
(1) … N/A
(2) If upon the conviction of an accused person
upon summary trial or trial on remittal by the Prosecutor-General, before
sentence is passed, the magistrate is of the opinion that a sentence in excess
of his jurisdiction is justified, he may adjourn the case and remand the person
convicted and submit a report to the Prosecutor-General, together with a copy
of the record of the proceedings in the case.”
Following
upon a consideration of the prejudice involved in the offence the
Attorney-General( now Prosecutor General) recommended that the matter be
transferred to the High Court for sentence in accordance with the provisions of
s 225(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
On
25 January 2010, the appellant appeared before a judge of the High Court in
Bulawayo for sentence. His conviction on
the charge of fraud was duly confirmed and he was sentenced to imprisonment for
a period of seven years, of which one year was suspended on conditions of good
behaviour. He has appealed with leave to
this Court against both conviction and sentence.
In
his grounds of appeal against conviction, the appellant raised the following
issues for determination:
-
that the learned magistrate failed to warn the accomplice witness in accordance
with laid down principle.
-
that the learned magistrate erred in returning a guilty verdict in the absence
of evidence establishing the guilt of the appellant beyond a reasonable doubt.
-that
the learned trial magistrate erred in rejecting the appellant's evidence
without giving cogent reasons for so doing.
As regards sentence, the grounds raised were
the following:
-that
the effective sentence of six years imprisonment was so excessive as to induce
a sense of shock.
-that
the failure by the learned judge in the court a quo to suspend a portion of the sentence on condition that the
appellant pays restitution to the complainant amounted to a misdirection
justifying interference with the sentence as a whole.
It
was contended by Mr Mushangwe, for
the appellant, that the conviction must be set aside on the grounds that the
failure by the trial magistrate to warn the accomplice witness was a
misdirection which warranted interference by this court in the verdict rendered
by the magistrate.
Before
us, Mr Ndlovu who appeared on behalf
of the State conceded that the learned trial magistrate failed to warn Nyathi
in accordance with the provisions of s 267 of the Criminal Procedure and
Evidence Act [Chapter 9:07]. However, despite this concession, it was the
contention by Mr Ndlovu that the
failure to warn the witness did not affect the cogency of the witness's
evidence nor her credibility as a witness. It was further argued that the
requirement for warning an accomplice witness merely serves to warn the witness
that he or she was compelled to answer all questions put to such witness
notwithstanding that some or all such questions may tend to incriminate the
witness.
The
court was referred to R v Simakonda
1965 R & N 465; and S v Ngara
1987 (1) ZLR 91 as authority for the proposition that a failure to warn an
accomplice witness against giving false evidence on the commission of an
offence is a misdirection.
Section 267 of the
Criminal Procedure and Evidence Act reads:
“F. Evidence of accomplices
267 Accomplices as witnesses for
prosecution
(1)
When the prosecutor at any trial informs the court that any person produced by
him or her as a witness on behalf of the
prosecution has, in his or her opinion, been an accomplice, either as principal
or accessory, in the commission of the offence alleged in the charge, such
person shall, notwithstanding anything to the contrary in this Act, be
compelled to be sworn or to make affirmation as a witness and to answer any
question the reply to which would tend to incriminate him or her in respect of
such offence.
[Subsection
substituted by section 22 of Act 9 of 2006.]
(2) If
a person referred to in subsection (1) fully answers to the satisfaction of the
court all such lawful questions as may be put to him, he shall, subject to
subsection (3), be discharged from all liability to prosecution for the offence
concerned and the court or magistrate, as the case may be, shall cause such
discharge to be entered on the record of the proceedings.
(3) A
discharge in terms of subsection (2) shall be of no effect and the entry
thereof on the record of the proceedings shall be deleted if, when called as a
witness at the trial of any person upon a charge of having committed the
offence concerned, the person concerned refuses to be sworn or to make
affirmation as a witness or refuses or fails to answer fully to the
satisfaction of the court all such lawful questions as may be put to him.
A
reading of the section in question confirms that the warning is primarily aimed
at an accomplice witness who is yet to be tried and charged. The procedure to
be adopted is that the prosecutor is required to advise the magistrate that the
witness is an accomplice who is yet to be charged. In turn, the magistrate is
required to warn the witness that he is required to give evidence and to answer
any questions truthfully notwithstanding that the questions might tend to incriminate
him.
Although
the trial magistrate states in the judgment that a warning in terms of s 267 of
the Criminal Procedure and Evidence Act had been issued to the accomplice
witness prior to her giving evidence, the record does not confirm the statement
of the learned magistrate.
The
evidence of Nyathi was critical to the State case as she was identified as the
person who purported to act as Magdaline Sibanda the owner of the immovable
property. Indeed the learned magistrate convicted the appellant primarily on
the basis of the evidence adduced by Nyathi on the involvement of the appellant
in the whole scheme. Given the clear provisions of s 267, the failure on the
part of the magistrate to warn the witness to tell the truth would not amount
to a misdirection. The witness had
already been convicted and sentenced. There was thus no fear that she could be
compelled to answer any questions that could incriminate her. She could not be
tried twice for the same offence.
However,
that being said, the magistrate was obliged to treat the evidence of the
accomplice with caution and the learned trial magistrate accepted that there
was need to treat the evidence of Nyathi with caution. It is clear from the
record that the magistrate was alive to this requirement and the principle that
the evidence of an accomplice should be treated with caution unless it was
corroborated by evidence aliunde.
The
principle is set out in s 270 of the Criminal Procedure and Evidence Act in the
following terms:
“270 Conviction on
single evidence of accomplice, provided the offence is proved aliunde
Any court which is
trying any person on a charge of any offence may convict him of any offence
alleged against him in the indictment, summons or charge under trial on the
single evidence of any accomplice:
Provided that the
offence has, by competent evidence other than the single and unconfirmed
evidence of the accomplice, been proved to the satisfaction of such court to
have been actually committed.”
The
reason for the existence of the cautionary rule regarding the evidence of
accomplice witnesses in criminal trials is trite. An accomplice is a self-confessed criminal and
various considerations may lead him to falsely implicate an accused person,
such as a desire to shield a culprit, or the hope of clemency where he has not
already been sentenced. Additionally by reason of his inside knowledge he has a
deceptive facility for a convincing description of the facts, his only fiction
being the substitution of the accused for the real culprit.
The
rule requires that the court should warn itself of the danger of convicting on
the evidence of an accomplice. Having done so, by contrasting the evidence of
the accomplice with that of the accused and viewing it against all the
surrounding circumstances and the general probabilities of the case, the court
must be satisfied beyond a reasonable doubt that the danger of false
incrimination has been eliminated. It is not enough for the trial court to
merely warn itself of the dangers of false incrimination and then to convict
simply on its faith in the honesty of the accomplice witness, based on nothing
more than his demeanor and the plausibility of his story.
The
requirements in regard to accomplice evidence are aptly summarized in S v Mubaiwa
1980 ZLR 477 to be the following:
(i)
in
exercising the caution which was necessary before acting upon the evidence of
an accomplice, the court had to deal separately with the case of each
appellant;
(ii)
quite
apart from the requirements of s 292 of the Criminal Procedure and Evidence Act
[Chapter 28](now repealed), a trial court had to warn itself of the danger of
acting on the evidence of an accomplice;
(iii)
the
best way to be satisfied that an accomplice was reliable was to find
corroboration implicating the accused;
(iv)
the
risk of accepting accomplice evidence would be reduced if the accused person
was found to be a liar, or did not give evidence to contradict that of the
accomplice;
(v)
but
in the absence of the features in (iv) the court could convict if, being aware
of the danger, it was satisfied that it could rely on the evidence of the
accomplice, because of the merit of the accomplice, as against the accused as a
witness was beyond question;
(vi)
in
the case of (v) if corroboration was necessary it had to be corroboration
implicating the accused person and not merely the corroboration which met the
requirement of s 292, i.e. corroboration in material aspects. (See R v Lembikani & Anor 1964 R. & N. 7.)
In his defence outline the appellant denied
that he was acquainted with Nyathi prior to the commission of the alleged
offence. He told the court that he saw
her for the first time after she walked into his office claiming that she was
Magdalene Sibanda. She had then
requested his assistance in the sale of her immovable property. According to the appellant she had in her
possession all the relevant documents.
Believing that she was who she purported to be, the appellant accepted the
mandate and advertised the property in the newspaper. The complainant responded to the advert and
went to view it. She was accompanied by
her father. She made an offer and an agreement of sale was prepared for
signature by both parties. Upon signature the complainant paid the purchase
price in full from which appellant was paid 5% as commission. Appellant then
advised the parties to go to Lazarus & Sarif to have the property transferred
to the complainant's name. However
before this could be done Nyathi disappeared and efforts on the part of the
complainant proved difficult.
The
complainant then caused their arrest and initially Nyathi denied knowing the
complainant and it was only after both the appellant and the complainant had
insisted that she admit her involvement that she admitted having signed the
agreement as Sibanda. The appellant told
the court that Nyathi had implicated him in the commission of the offence
purely out of malice as he had no connection with her prior to the transaction
in which his assistance had been sought for the sale of the property in
question.
The
appellant gave evidence on oath in his defence. The trial magistrate was
persuaded to find that the witnesses for the State were credible and as a
result found the appellant guilty of the offence with which he had been
charged.
What
emerges from the record is that the learned magistrate warned herself of the
dangers of accepting the evidence of a single witness unless there exists
sufficient evidence aliunde pointing
to the guilt of the accused before convicting such accused person. The mere
fact that that there is evidence aliunde that
the offence has been committed does not mean that the accomplice's evidence
must not be approached with caution. The
accomplice's evidence must be corroborated, but the corroborative evidence need
not implicate the accused. It is sufficient that the accomplice's evidence be
corroborated in a material respect. The principle was succinctly spelt out by
QUENET J.P. in R v Juwaki and Anor 1965 (1) S.A. 791(S.R., A.D), at 794A-F as
follows:
“I
do not agree that in every case where imperfections exist in the evidence of an
accomplice there must necessarily be corroboration of his evidence implicating
the accused. As was pointed out by SCHREINER, J.A. in R v Ncanana 1948(40 S.A.
399 (A.D.), that is the best but not the only way of reducing the danger of
false incrimination, and see R v Mpompotshe, 1958 (4) S.A. 471 (A.D.). The
legal position as stated by CLAYDEN C.J. in these terms:
'The principles which apply were set out in Rex v
Ncanana, 1948 (4) S.A. 399 (A.D.), and were confirmed more recently in R v
MPOMPOTSE, 1958 (4) S.A. 471 (A.D.). I do not propose to set out in full what
was said by SCHREINER J.A. in those two cases. He said that, quite apart from
the section, a trial court had to warn itself of the danger of acting on the
evidence of an accomplice. He said the best way to be satisfied that the
accomplice was reliable was to find corroboration implicating the accused. But
he also said that the risk in accepting accomplice evidence would be reduced if
the accused person was found to be a liar, or did not give evidence to
contradict that of the accomplice. And he said that in the absence of these
features, the court could convict if, being aware of the danger, it was
satisfied that it could rely on the evidence of the accomplice because the
merit of the accomplice, as against the accused, as a witness was beyond
question. In the later cases it was stressed that if corroboration was
necessary it had to be corroboration implicating the accused person and not
merely the corroboration which meets the requirements of the section,
corroboration in material respects.'”
(See
Lembikani & Anor 1964 R & N 7,
delivered in the Federal Supreme Court on 11th February, 1964).
Where there are imperfections in the evidence of an accomplice and there is no
corroboration of his evidence implicating the accused, the question remains
whether there are other features which reduce the danger of false incrimination
and if there are, whether they reduce it to the point where there is no
reasonable possibility that the accused has been falsely implicated. Indeed,
that was the manner in which CLAYDEN, C.J. approached the question of the
correctness of the second appellant's conviction in Lembikani's case. And may I
say that in considering whether the danger of false incrimination has been
satisfactorily removed, the need that the other features should be strong and
significant must, in each case, be related to the quality and character of the
accomplice's evidence and the degree of its impeferctions.
The
special danger of false implication is not met by corroboration of the
accomplice's evidence in material respects not implicating an accused. Nor is
it met by proof aliunde that someone
else committed the crime. The risk will be reduced if in the most satisfactory
way if there is corroboration implicating the accused. It will also be reduced
if the accused is shown to be a liar, does not give evidence to contradict or
explain the evidence of the accomplice. The risk will be further reduced, even
in the absence of the above features, if the court recognizes the inherent
danger of convicting on the evidence of an accomplice, and appreciates that the
acceptance of the accomplice's evidence and rejection of that of the accused
person is only permissible where the merits of the former and the demerits of
the latter as witnesses are beyond question. See R v Ncanana (3) 1948 (4) S.A. 399 (A.D), at pp 405-6.
However,
although the learned trial magistrate warned herself of the dangers of
convicting an accused on the sole evidence of an accomplice, she did not go
further to find evidence on the record that corroborated the implication of the
appellant by the accomplice witness. Also critical to this enquiry is the
source of the documents that were used in the fraud. Whilst the witness stated
that the appellant had the documents and exhibited them to her, the position of
the appellant was that these documents were brought to him by Nyathi. He stated
that she identified herself as Sibanda.
The
evidence of the complainant was to the effect that the supposed seller produced
a national identity card which had her picture and names. The identity document
was given to the witness to confirm that the supposed seller was indeed
Magdalene Sibanda. The title deeds were at the same time handed over to the
appellant, presumably for his perusal. Clearly the national identity document
was a critical feature in the transaction as it would satisfy the purchaser as
to the authenticity of the seller and the genuineness of the transaction.
Despite this clear evidence from the complainant the court did not have regard
to the improbability of the appellant having procured the document depicting
Nyathi as Magdalene Sibanda. If her likeness was on the national identity
document then her version that she had merely been called in to pretend to be
Sibanda would not be credible. She had to explain how her likeness was depicted
on the national identity document of some other person. She did not suggest
that the appellant had asked her to furnish him with her photograph in order to
perpetrate the fraud.
There
is some conflict on the evidence as to whether the identity document was of
metal or paper. What however is not in dispute was that the complainant was
persuaded that the person whose face was depicted on the identity document was
the accomplice witness Nyathi. If
Sibanda's face had not been on the document the fraud would not have succeeded.
It was only when the complainant went looking for the supposed seller for
purposes of having transfer effected that the reality of the fraud struck her.
The person who signed the agreement of sale and whose likeness was depicted in
the identity document exhibited to her was not the same person who she found at
the property which had been sold to her and identified herself as the
registered owner. The unmistakable
conclusion is that the witness participated in the fabrication of the document.
Clearly
there were imperfections in the evidence of the accomplice witness. There is in
fact no evidence corroborating her evidence in material respects. The other
features that would tend to reduce the risk of false implication are absent and
were not even adverted to by the magistrate. Critically one of the most
important features is the impression created by the accused as a witness. The court a
quo criticized the appellant in the following terms:
“It
is correct to assume that when the accused was approached by the seller seeking
his services as an agent the accused went as far as seeing the property for
sale to satisfy himself that the property existed and then went on to place an
advert in the newspaper describing the property so as to seek buyers. If indeed
the owner of the property was not selling the property or was not the person
who approached the accused person it should have been detected at this stage.
At
no time in the judgment is the appellant accused of telling untruths or being a
liar. The criticism is limited to the manner in which he dealt with his mandate
as an agent. That he should have gone to view the house being offered for sale.
The judgment also criticizes Magdalene Sibanda. It is suggested in the judgment
that when the complainant went to view the property there was someone at the
property and that the visit by the complainant ought to have alerted Sibanda of
this imminent threat to her property. The magistrate also wondered how the
title deeds and the identity document could have ended up where they did if
Sibanda was not acquainted with Nyathi and the appellant.
What
the court missed which was critical in my view, was how the accomplice obtained
an identity document bearing the name of Magdalene Sibanda but bearing her
likeness. Both the complainant and the appellant stated that Nyathi had a metal
identity document with her likeness in the name of Magdalene Sibanda and they
accepted that the identity document was genuine and authentic. The learned
trial magistrate did not make any findings as to the credibility of the two on
this material aspect of the evidence. This
evidence points to the fact that the accomplice had obtained documents in
Sibanda's name and further that she was masquerading as Sibanda. After the
fraud Nyathi disappeared from the scene and only emerged when the police got
involved. As a result due to the imperfections should have found corroboration from
the evidence of the complainant on the material aspect that the appellant
connived with Nyathi to misrepresent to the complainant that Nyathi was Sibanda
the owner of the immovable property which was the subject matter of the
fraud. The only evidence to that effect
was from Nyathi and this was the critical issue for determination in the guilt
of the appellant.
It
is evident that in assessing the evidence of the accomplice witness the
magistrate did not have regard to the requirements set out in Mubaiwa's case. In
her analysis of the evidence adduced before the court, the learned magistrate
appeared to shift the onus to the
appellant to establish his innocence where the state had not established his
guilt beyond a reasonable doubt.
The mere fact that the appellant advertised a property
for sale on its own would not necessarily lead to a conclusion that he was
guilty of fraud. It is beyond doubt that the magistrate considered the
advertisement of the property by the appellant as the grounds for a finding of
guilt on the part of the appellant. The evidence of the appellant was subjected
to the kind of scrutiny that should have been applied to the evidence of
Nyathi. Describing the appellant as a middleman, the court considered that it
was imperative upon him to have verified the authenticity of the documents used
in the fraud. The court should have asked itself what convinced the complainant
that identity document revealed Nyathi as Sibanda. If the appellant was just a
middle man, how did Nyathi's likeness appear on identity documents bearing
Sibanda's personal details and likeness. The court also did not mention any
evidence aliunde, which would confirm
the appellant's role in the deception. The
evidence of Sibanda actually put in doubt the complicity of the appellant in
the commission of the offence.
The established facts were that Nyathi had the
national identity documents for Sibanda and the original title deeds to the
immovable property in her possession. The
facts established were that Nyathi posed as Sibanda and executed documents
relating to the fictitious agreement of sale resulting in the complainant losing
substantial sums of money. Even though
Nyathi admitted taking part in the fraud, there was need for corroboration on the role that the
appellant was alleged to have played in colluding with Nyathi to act as Sibanda
and misrepresent to the complainant that she was the real owner of the property
in question. This necessary piece of
evidence was never before the court a quo
and in its absence the court could not have come to the conclusion that the
accomplice had properly implicated the appellant.
In
my view the court a quo failed to
give proper consideration to the cautionary rule relating to accomplice
evidence and the only logical conclusion is that there was insufficient
evidence upon which the appellant could have been convicted of fraud.
In
view of the finding that the evidence of Nyathi could not be found to be
credible in the absence of evidence aliunde
corroborating her implication of the appellant, there is no need to examine the
other grounds of appeal. Accordingly the
conviction must be vacated.
I turn next to the
question of sentence. In passing
sentence the learned judge before whom the appellant for purposes of having
sentence passed did not give reasons for the sentence meted out to the
appellant. A failure to give reasons for
sentence or an order is a gross irregularity and thus amounts to a
misdirection. In S v Makawa 1991 (1) zlr 142 (S) EBRAHIM JA stated:
“Although
there are indications in this case that the magistrate may have considered the
case, a large portion of those considerations remained stored in his mind
instead of being committed to paper. In the circumstances, this amounts to an
omission to consider and give reasons. There is a gross irregularity in the
proceedings. See R v Jokonya 1964 RLR
236(G); R v d'Enis 1966 RLR 457(A);
1966 (4) SA 214(RA); and Practice Note 4 of 1966(Appellate Division) 1966 RLR
755.”
See
also the remarks of GARWE JA in Gwaradzimba
v C.J. Petron & Company (Pty) Ltd SC 12/16.
Accordingly, the sentence of the court a quo stands to be quashed not only by
reason of the fact that the appellant has been acquitted of the charges but
also on the basis of the misdirection.
In
the premises, the appeal succeeds. The
conviction is set aside and the sentence by the High Court is quashed.
CHIDYAUSIKU
CJ: I
agree
MUTEMA
AJA: I
agree (the late)
Mushangwe
And Company, appellant's legal practitioners
The National Prosecuting
Authority, respondent's legal practitioners
