TAKUVA
J: This is an
appeal against conviction. Both
appellants were convicted of theft by a magistrate sitting at Gwanda. The charge was framed as follows:
“Contravening section 113 of the Criminal Law Codification and Reform Act
Chapter 9:23 “Theft”. In that on the 10th
day of October 2013 and at Gonda North Mine Freda Gwanda, Lourens Botha
(Senior) and Lourens Botha (Junior) or both or one or more of them unlawfully
stole 165 KVA generator and quirl bowl with a total value of US$31 500,00
knowing that Brownson Marcus David was entitled to own, possess or control the
property intending to deprive permanently of his ownership, possession and
control of the property.”
It
is necessary for me to recount the facts as they appear in the outline of the
state case. They are that –
“1. …
2. …
3. On
the 10th day of October 2013, the two accused connived and went to
Gonda North Mine, Gwanda and stole one 165 KVA generator and one quirl bowl
after they misled Laxin Ndlovu that the complainant had lent them.
4. On
the 22nd of October 2013 the complainant came back and discovered
that his property was missing from Gonda North Mine and informed by Laxim
Ndlovu that his property was taken by the accused persons.
5. A
report was made to the police leading to the recovery of the property from the
accused persons.
6. The
stolen property is valued at US$31 500,00 and it was recovered. It can also be produced in court as exhibit.
7. The accused had no right to commit the
offence.”
Both
accused persons pleaded not guilty to the charge of theft. To the extent that their defence outlines
give a detailed history or background to this case I will quote it from the
record in extenso. It goes like this:
“… The generator and bowl in question were purchased by a company
called Endless Fun (Pvt) Ltd. That
company was incorporated on 15 July 2011.
Marthinus Lourens Botha was the major shareholder at incorporation. The company entered into partnership with
Derrick Conroy and Garvin Johnson. The
shareholding in the partnership was 60% for Lourens Botha (Senior) and 40% for
the other two partners. The two accused
persons were then approached by Fredrick W. A. Lutzkie who indicated to them
that he had talked to Derrick Conroy and Garvin Johnson, and that the two were
no longer interested in the partnership.
The partnership had purchased 12 mining claims at the time. Mr Lutzkie suggested that the accused part
ways with Derrick and Garvin on the following terms:-
(a)
The accused persons will keep 6
mining claims with Derrick and Garvin taking the other 6.
(b)
Derrick and Garvin were to take
the generator and the quirl bowl along with some other equipment that belonged
to them privately.
(c)
A full shareholder's agreement
would be drawn up to specify the exact terms of the dissolution.
The shareholder's agreement was however never done. Up to date, it has not yet been done or
finalised. So, the proposal was never
carried into completion. It had been
proposed that Mr Lutzkie will transfer the company Endless Fun (Pvt) Ltd to
Abangane Mining (Pvt) Ltd after the shareholders agreement was signed and after
6 mining claims were transferred to Sihambasonke (Pvt) Ltd. That was also not done up to date.
No payment was made by Mr Lutzkie.
The accused will state that Marcus Brownson was never part of or
shareholder in Endless Fun (Pvt) Ltd nor a partner in the partnership mentioned
above. The accused have always been in
possession of the said equipment that is the generator and bowl. They have always been the custodians of
it. They moved the generator and quirl
bowl from the yard where they were being kept to Sihambasonke Mine for security
reasons. An electric motor had been
stolen from that yard and also the electrical box of the generator had been
tempered with, thus prompting the move to take the property to safety.
The complainant reported this matter in December 2013, yet he had
taken custody of the equipment in October 2013.
The accused persons will thus deny that Mr Lutzkie had acquired
ownership of the equipment in question.
They will state that if he sold the equipment to the complainant, then
he sold equipment that did not belong to him.
They pray for their acquittal.”
The
learned magistrate crystallized the issues as follows:
“(1) whether
the accused persons took the generator and bowl from Gonda North Mine on 10
October 2013.
(2) whether
the generator and bowl belonged to Marcus Brownson David or any other person
not the accused persons as at 10 October 2013.
(3) If
the generator and bowl belonged to someone else not the accused persons whether
the accused persons knew of that fact.
(4) whether
the accused persons intended to permanently have the generator and quirl bowl
as theirs and do with them as they pleased.”
In
view of the defence outline, it is surprising why the court a quo phrased the issues as it did. The 1st and 4th issues
are common cause. The 2nd and
3rd issues are inelegantly drafted.
The sole issue is whether or not the state rebutted the defence of claim
of right. In other words, whether or not
Lutzkie acquired ownership rights in the property and if so under what
circumstances. Had the court a quo stated the issues properly, it
would have dealt with the legal requirements of the defence of claim of right.
The
court a quo concluded that appellants
lost their rights to the property after they “transferred” their
shareholding in Endless Fun (Pvt) Ltd on 25 June 2013. The court reasoned as follows:
“I conclude that indeed the accused persons transferred their
shareholding in the company to Lutzkie on 25 June 2013. I must state here that I have reached this
conclusion, not on the basis of Lutzkie being a credible witness, but on the
basis of exhibit 1 and exhibit ll which the accused persons admitted. It is neither here nor there whether any
money changed hands between the accused persons and Lutzkie. The resolutions were about transferring (not
selling) the shares. Why accused
persons were transferring their shares to Lutzkie is not relevant. All that is relevant is that they transferred
their shares in the company to Lutzkie.
When the accused persons transferred their shareholding in the
company to Lutzkie they ceased to own the company and its assets and
liabilities. Some of the assets that the
company had were the generator and quirl bowl the subject matter of this
case. With effect from 25 June 2013,
the generator and quirl bowl were no longer accused persons' assets, because
the accused persons no longer owned the company items …” (my emphasis)
The
grounds of appeal as outlined in the notice of appeal are that:
“1. The
learned trial magistrate in the court a
quo erred in law in ruling that the state had proven its case beyond
reasonable doubt. The court a quo ruled that it was not relevant or
material that the fourth state witness had not paid for the purchase of shares
in Endless Fun (Pvt) Ltd. The learned
trial magistrate stated that what was material was the signing of transfer of
shares form, by both appellants. This
reasoning by the magistrate in the court a
quo is wrong in that for there to be a valid contract of sale at law, there
ought to be an agreement on both the merx or property that is subject of the
sale and the pretium or price that is
payable for the merx or item sold. The 4th state witness had no
lawful right to sell the property.
2. The
learned trial magistrate in the court a
quo erred at law in not putting or attaching adequate weight to the fact
that the 4th state witness paid a deposit of one million Rands as a
deposit for shares in Doddieburn Holdings (Pvt) Ltd, and not for four companies
as claimed by the fourth state witness, as shown and proven in the defense
case. The total purchase price for the
shares in Doddieburn Holdings and Crocoburn was three million two hundred thousand
South African Rands. This agreement
related to Doddieburn Holding (Pvt) Ltd only, and did not relate to any other
venture or companies. In his evidence,
the fourth state witness stated that he paid one million Rands, and that this
was full purchase price due, and that this payment covered all other companies
and transactions including Endless Fun (Pvt) Ltd. The evidence by the fourth state witness was
false as proven in the defense case. In
the light of this false testimony by the fourth state witness the learned trial
magistrate should have ruled in favour of the appellants in the trial and
acquitted the appellant of the charges.
3. The
learned trial magistrate in the court a
quo erred at law in ruling that the appellants concluded a valid and
binding contract of sale of shares in Endless Fun (Pvt) Ltd with the fourth
witness. The documentary evidence
produced in court does not support that position.
4. The
learned trial magistrate in the court a
quo erred in law in not putting sufficient weight to the possibility of the
manipulation of the docket as shown by the disappearance of the first statement
by the third state witness. The first
statement exonerated the two appellants.
The statement was eventually replaced with an incriminating
statement. A letter of complaint was
done by the appellant's legal practitioners and served on the prosecution and
the contents have not been disputed to date.
5. The
learned trial magistrate in the court a
quo erred in law in finding that the appellants had the requisite
intention to commit the crime of theft.
Considering the fact that the appellants believed at all material times
that they owned the equipment and had not yet concluded any sale in respect of
their shareholding in Endless Fun (Pvt) Ltd, it follows that, taken
subjectively, the appellants had no requisite intention to commit the crime of
theft.” (my emphasis)
The
appellants prayed for the conviction to be set aside and that they be
acquitted. As pointed out above the sole
issue for determination should have been whether or not the state proved beyond
a reasonable doubt that the appellants had the requisite intention to
steal. Put differently, whether the
state was able to rebut the defence of claim of right. Exhibits 1 and 2 together with the rest of
the evidence should have been utilized to answer this fundamental issue. Unfortunately, the court a quo approached the issue in a somewhat piece-meal manner.
A
claim of right is as G Feltoe puts it, “a decently clothed ignorance or mistake
of law. If ignorance or mistake of law
is decently clothed that is where X either knows or suspects that his action
would normally be illegal but because of some extraneous factual basis, he
believes that his actions will not be unlawful in present circumstances .. This defence only applies in respect of
property crimes such as theft, robbery or malicious injury to property” see G. Feltoe, A Guide To The Criminal Law in Zimbabwe 3rd edition at p
29.
The
requirements for the claim of right defence are:
(a)
the mistake must be material
(b)
in crimes of intention, a
genuine mistake will excuse. It need not
be reasonable but the unreasonableness of the mistake may be evidence of lack
of genuineness.
(c)
where the crime is one of
negligence, the mistake must be both genuine and reasonable.
(d)
the defence will not avail in
strict liability crimes
(e)
it must be a properly clothed
mistake or ignorance.
See S v Mudimu
1981 ZLR 381 (GS)
S v Tamayi & Ors 1982 (1) ZLR 267 (S)
S v Mutonga S-71-83
In S v Machokoto
1996 (2) ZLR 190 (H) it was held inter
alia per CHINHENGO J, that the defence of claim of right is not limited to those cases
where the belief is reasonable or justifiable.
All that is required is that the belief be genuinely entertained, the
reasonableness of the belief only being relevant to determining the genuineness
of the belief. If the belief is genuine,
then the possession is bona fide.
In Mutizwa & Ors 1988 (2) ZLR 74 (SC)
it was held per KORSAH JA (as he then was) that “on a charge of
malicious injury to property the infliction of intentional wrongful injury to
the property of another raises a presumption of malice, which may be rebutted
by showing a bona fide belief that
the act done was lawful. It is not
necessary for the accused to show that such a belief was reasonable, although
the reasonableness or otherwise of the belief provides cogent evidence as to
whether it was held bona fide. In the present case, it was eminently
reasonable for the appellants to believe that they had a legal right to remove
the structures that had been erected in their grazing area and the presumption
of malice was accordingly rebutted.”
There is also
statutory provision for this defence in sections 233 and 237 of the Criminal
Law Codification and Reform Act Chapter 9:23.
Section 233 states:
“233. When mistake or ignorance of fact a
defence to subjective crimes
If a person does or omits to do anything which would be an essential
element of a crime if done or omitted as the case may be, with any form of
intention, knowledge or realization, the person shall have a complete defence
to a charge of committing that crime if, when he or she was genuinely mistaken
or ignorance to an essential fact of the crime concerned.
Subject to this Code and any other enactment, mistake or ignorance
of an essential fact may be a defence to a crime referred to in subsection (1)
even if it is not reasonable;
Provided that the reasonableness or unreasonableness of any mistake
or ignorance may be taken into account in determining whether or not it is
genuine.”
In casu, the applicants laid a solid
foundation to the existence of bona fide
claim of right. From the record, the
appellants' evidence can be summerised as follows:
The
generator and quirl bowl in question were acquired by a company in which the
appellants are the shareholders. This
company was incorporated on the 15th of July 2011. The company then formed a partnership with
one Derick Conroy and one other Garvin Johnson.
The shareholding in the partnership was as follows: 60% by Endless Fun
(Pvt) Ltd while 40% shareholding was held by the two partners i.e. Mr Conroy
and Mr Johnson in equal shares of 20% each.
Subsequently, the appellants were approached by Fredrick W. A. Lutzkie
who indicated to them that he had met with Derick Conroy and Johnson and that
these two were no longer interested in working in the partnership.
Meanwhile,
the partnership had purchased twelve (12) mining claims. Mr Lutzkie suggested that the appellants part
ways with the two partners on the following terms:
(a)
the appellants were to keep six
(6) mining claims, Conroy and Johnson were to take the other 6.
(b)
Conroy and Johnson were to take
the generator and quirl bowl along with some other equipment. Appellants were to remain with other
equipment that belonged to them privately.
(c)
a full shareholders agreement
was to be drawn up to specify the exact terms of the dissolution.
According to the
appellants, a shareholder's agreement was never reached and the partnership was
never dissolved. Consequently, Mr
Lutzkie in that sense, never really acquired ownership of the generator and
quirl bowl. Mr Lutzkie later sold the
property to a 3rd party, one Andre Wagner, who in turn sold it to
the complainant. The appellants stated
that they had always been in possession and control of the equipment in
question from Gonda North Mine to Sihambasonke Mine. They took the property in order to secure it
as there had been an incident of theft at Gonda North Mine.
Both appellants
denied the allegation of theft on the basis that they could not have stolen
equipment that they had always owned and controlled and were custodians
thereof. Further, appellants stated that
while in the proposed dissolution of the partnership, shareholding in Endless
Fun (Pvt) Ltd was to be transferred to Mr Lutzkie, that dissolution was not
finalised. Mr Lutzkie did not pay in
terms of the purchase price and as such would not acquire ownership of Endless
Fun as stipulated in clause 6 of exhibit IX on page 106 of the record of
proceedings.
On the other
hand, Mr Lutzkie in his evidence stated that he paid a sum of R1 000 000,00 for
the purchase of Endless Fun in a transaction involving four (4) companies – see
page 38 of the record.
Faced with this glaring
dispute of fact, the court a quo
failed to resolve it by assessing the credibility of Mr Lutzkie and appellants
as witnesses. Instead, it relied solely
on exhibits 1 and 2, arguing that they contained conclusive evidence on their
own. This, in my view is a misdirection
in that, taken in isolation, exhibits 1 and 2 lead one to an ambiguity as they
clearly do not reveal the full story of what transpired and why. Worse still, the court a quo shied away quite surprisingly from making a specific
pronouncement on Lutzkie's credibility as a witness.
Astoundingly,
the court not only spent quite a considerable amount of time criticizing
appellants' testimony but also unjustifiably made adverse findings on their
credibility. I take the view that these
findings are totally against common sense and logic in that the agreement of
sale of shares attached to the record of proceedings in pages 101 to 115 shows
the purchase price for the sale of 35% shares in Doddieburn Holdings as R3 200
000,00 and not R1 000 000,00. Logically,
if the purchase price is R3 200 000,00 and only R1 000 000,00 is paid, there
was no full payment, as such the agreement was not perfect as Lutzkie was in mora.
It is common cause that Lutzkie only paid R1 000 000,00 – see pages 38,
39, 41 and 47 of the record of proceedings.
Further, the other conditions stipulated in the agreement were not
carried into effect.
Obviously, the
sale had been a conditional sale and unless all the suspensive conditions are
carried into effect, the ownership, control and possession of the equipment
remained with the appellants – see Chinyegere
v Fraser 1994 (2) ZLR 254. It seems to me that the transfer was on
account of an agreement of sale (Ex 1X) and should not have been viewed in
isolation as an end in itself. In terms
of exhibit 1X, ownership, risk, possession and control in the sale of shares
was to be transferred to the purchaser upon the discharge of the obligations of
the purchaser contained in that agreement.
Lutzkie, the purchaser in my view is an incredible witness who did not
discharge his obligations in terms of the agreement. Mr Lutzkie was very evasive on what the price
for Endless Fun was. For example under
cross-examination, the following exchange occured:
“Q
- You say you paid R1m
for the shares?
A
- For four transactions
and not just for Endless Fun
Q
- What was the value of
the shareholding you were purchasing in Doddieburn?
A
- I am not able to
answer that question. It is impossible
to break the R1m down into four parts.
Q
- I put it to you the
R1m was shareholding in Doddieburn not in Endless Fun?
A
- No” see
page 41 of the record.
Further, on p 40 the questioning went as
follows:
“Q
- I put it to you,
exhibit 1 was not an agreement of sale, but just a proposal of the manner of
the dissolution of the partnership between accuseds and the two parties?
A
- That is not correct.
Q
- I put it to you, none
of the conditions stipulated in the exhibit was fulfilled?
A
- They were.
Q
- I put it to you, there
are many conditions that were in the proposal which were never fulfilled?
A
- I have the shares in my
name and the accused have not raised an issue in 12 months.
Q
- To illustrate, has the
transfer of 6 claims to Abangane Mine been done?
A
- Yes
Q
- Do you have documentary
proof from the Ministry of Mines?
A
- Yes. Here it is (D C shown some documents)
Q
- But you are showing me the
mining claims in the name of Endless Fun.
I said were 6 mining claims transferred to Abangane Mine?
A
- I cannot comment on
that. I cannot testify on that. But I can tell you that, that clause was not
a pre-requisite for the sale of the shares.” (my emphasis).
I find Lutzkie's
evidence to be unsatisfactory in two material respects. Firstly, there is nothing “impossible” in
ascertaining the value of shares in each of the 4 companies he claimed to have
purchased for R1 million. Secondly, he
contradicted himself by initially saying all the conditions stipulated in
exhibit 1 were fulfilled and later saying the clause relating to 6 mining
claims (which was one of the conditions) was not “a pre-requisite for the sale
of the shares”.
Also, the
evidence shows that Lutzkie was unable or unwilling to divulge his
share-holding in the other two companies namely Sihambasonke Mine and Abangane
Mine. He only mentioned 35% in
Doddieburn and 100% in Endless Fun. He
did not specifically mention the other companies. On page 38 of the record he was asked;
“Q - The
accuseds say you did not make any payment for Endless Fun?
A
- That is not true. There were four companies, all
interlinked. One could not be sold
without the others being paid for also.
The agreement was for all four companies, and I paid for them and accused
I received payment in South Africa, R1million, through my lawyers in South
Africa. That was for 35% in Doddieburn,
100% in Endless Fun and so on. So all
these transactions were one.”
Now, I find it
strange that Mr Lutzkie who, in my view, appears from his evidence to be an
astute businessman bent on making profits, would blindly purchase two companies
whose value and viability was a mystery.
It seems to me that, from the totality of the evidence, it was eminently
reasonable for the appellants to believe that they had a right in law, in the
protection of their ownership rights of the property to recover or repossess
the generator and the quirl bowl. As GOLDIN AJA points out in S v Beale 1981 ZLR 269 at 272 A:
“… what is decisive is not the lawfulness of what was done but
whether the accused believed he was entitled to do it. (see R
v Bhaya 1953 (3) SA 143 (N) at 148 –
9; S v Marshall 1967 (1) SA 171 (O) at 174).” (my emphasis)
In casu, the appellants
believed genuinely that Mr Lutzkie had not fully acquired rights in Endless Fun
(Pvt) Ltd because the other conditions tied to that contract had not been
fulfilled. Also Mr Lutzkie had not fully
paid for the shares. Therefore,
appellants' mistake is clearly one of law in that they genuinely believed that
this was their own property. In the
result, the state failed to establish that element of mens rea which is necessary to support a conviction on a charge of
theft.
Accordingly, the
convictions are quashed and the sentences are set aside.
Makonese
J ……………………………. I agree
Phulu & Ncube, appellants' legal
practitioners
National Prosecuting Authority, respondent's legal practitioners
