TAGU
J: The appellants were charged, and convicted after a contested trial, for
contravening s 113 (2) (d) of the Criminal Law (Codification and Reform) Act [Cap 9:23], as read with s 277 (3) of the
Code (theft of trust property). They were
sentenced as follows-
“Accused
1 is sentenced to pay a fine of US$ 15 000.00 or in default a writ of execution
against its property. In addition accused
1 is ordered to pay restitution to the complainant of US$ 42 154.39 through
clerk of court Harare on or before 31st August 2013.
Accused
2 and 3 are each sentenced to serve 7 years imprisonment of which 2 years
imprisonment is suspended for 5 years on condition during that period accused
does not commit any offence of which dishonesty is an element to which if he is
convicted will be sentenced to imprisonment without an option of a fine. Of the remaining 5 years imprisonment 3 years
imprisonment is suspended on condition each accused restitutes US$ 42 154.39 to
complainant through clerk of court Harare on or before 31st August
2013”.
The bulk of the facts in
this case are common cause. The undisputed
facts are that the first appellant is a Zimbabwean registered company situated
at 12 Ridgeway North, Highlands, Harare. Appellants 2 and 3 are both Directors
of appellant 1. Appellant 2 is an uncle to the complainant. On the 9th of October 2009, the
complainant who was based in Austria, and did not have a local bank account in
Zimbabwe, requested and was allowed by the appellants to deposit her money into
their company's Standard Chartered Bank account number 090318080. The complainant then deposited $ 165 877.57
for safe keeping. During the period extending from October 2009 to November
2011, the appellants withdrew a total of US$ 126 463.17 without the complainant's
approval. Nothing was recovered.
The appellants are appealing
against both conviction and sentence handed down by the Regional Magistrates
court on the 11th February 2013.
The appeal is premised on a number of grounds.
At the hearing of the
appeal, Advocate Takaindisa, for the
appellants, applied that the respondent be barred from making submissions on
the basis that the respondent had failed to file his heads of argument
timeously. The respondent's heads were filed out of time and not in compliance
with the rules of this Honourable Court. Advocate Takaindisa referred us to the cases of AG v Lafleur and Anor
1998 (1) ZLR 520, S v Sibanda 2001 (2) ZLR 514 on the need to
strictly adhere to time limits.
Mr Chikosha, for the respondent confirmed that heads of argument were
indeed filed late on the 29th of July 2014. However, he gave a reasonable explanation as
to why the heads were filed out of time.
We were of the unanimous view that it was in the interests of justice
that non-compliance with the rules be condoned and that the matter be heard on the
merits.
Mr Chikosha
then raised a point in limine, that
the appellants' notice and grounds of appeal did not meet the requirements of r
22 (1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules 1979. He submitted that the notice and grounds of
appeal were vague, and did not set out clearly and specifically the grounds of
the appeal. He referred us to the case of S
v Thomas Madeyi appeal case number 24
/13.
Advocate Takaindisa conceded that the notice and
grounds of appeal indeed did not comply with the rules, and that they leave a
lot to desired. Advocate Takaindisa,
further conceded that the language used was lax. He however, abandoned several of the grounds
of appeal and urged the court to hear the appeal on the ground that the money
was not held in trust. He submitted that the money in question was given to the
appellants to keep on her behalf and then return it back on demand. He further,
submitted that the three appellants acted as complainant's bankers. Hence their failure to return the money did not
amount to a criminal liability, but a civil liability. On sentence he submitted that the appellants
should have been given the option to perform community service.
However, the respondent supported
the conviction and sentence imposed by the court a quo. Mr Chikosha maintained that this was trust money which was to be kept for
safekeeping.
As regards the conviction
the sole issue to be determined is whether or not the money was trust property
as defined in the Act. Trust Property is defined in s 112 and 113 of the
Criminal Law (Codification and Reform) Act [Cap
9:23] as follows-
“trust
property' means property held, whether under a deed of trust or by agreement or
under any enactment, on terms requiring the holder to do any or all of the following-
(a)
hold the property on behalf of another person or account for it to another
person; or
(b)
hand the property over a specific person; or
(c)
deal
with the property in a particular way;
but does not include property received on terms expressly or impliedly stipulating
that-
(i)
the
recipient is entitled to use the property as his or her own, and
(ii)
there would only be a debtor and creditor relationship between the parties”
Section
113 (2) says-
“(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) omits to account or accounts incorrectly for
the property; or
(b)……………………
(c) uses the property or part of it for a purpose
other than the purpose for which he or she is obliged to use it; or
(d)
converts the property or part of it to
his or her own use.”
In
casu,
the reading of the record shows that the appellants were given the money to
hold in trust on behalf of the complainant and to account for it. They failed
to account for the money when the complainant wanted it. They were not to use it without her consent.
It is not correct to say that the appellants held the money as the
complainant's bankers, and could use it as they pleased. Perusal of the record
shows that when the appellants wanted to use part of the complainant's money
they requested for it and the complainant
gave them the permission to use US$ 24
725.00 to buy Macadamia nuts for resale and she gained interest in the sum of
US$ 5000.00. When the appellants used
the residue of US$ 126 463.17 they did so without any express permission from
the complainant. The money was clearly
Trust Property which they had to account for, but they squandered it without
the complainant's consent. The appellants
therefore breached the trust that had been bestowed on them.
In our view all the
appellants committed the offence as alleged.
The lower court did not err in convicting the appellants as it did. The conviction is therefore proper in the
circumstances.
As regards the sentence,
it is trite law that sentencing is, by and large, the discretion of the sentencing
court. The appeal court has invariably
limited powers which enable it to interfere with the sentence the trial court will
have imposed. Its powers in this regard
can only be exercised where, ex-facie
the record, the court a quo has
misdirected itself or has imposed a sentence which is manifestly disproportionate
to the crime committed.
In
casu,
an amount of US$ 126 463.17 was stolen and nothing was recovered. In our view the sentence does not induce a
sense of shock. Community service is
only reserved for non-serious offences.
Here there was some pre-planning.
There was an abuse of trust, and whether there is a breach of trust, one
cannot be treated with kid gloves. The sentence imposed upon the appellants, in
our view, fits both the offence and the offenders. We will, therefore, not disturb it.
The appellants' appeal
against both conviction and sentence fails.
It is, in the result, ordered
as follows:-
That the appeal be and is
hereby dismissed in its entirety.
BHUNU J agrees ……………………………
P.
Chiutsi Legal Practitioners, appellants' legal practitioners
Prosecutor-General's Office, respondent's legal
practitioners
