Criminal
appeal
MAFUSIRE
J:
[1] This
was a criminal appeal from the Magistrates' Court. It was against
both conviction and sentence. The appellant was convicted of theft of
trust funds as defined in section 113[2][d]
of the Criminal Law [Codification and Reform] Act, Cap
9:23
[“the
Code”].
The amount involved was $2,500. He was sentenced to a fine of $400,
or in default thereof, three months' imprisonment. He was also
sentenced to an additional twelve months imprisonment of which six
months' imprisonment was suspended for five years on the usual
condition of good behaviour. The remaining six months imprisonment
was suspended on condition that he paid the complainant restitution
in the amount aforesaid.
[2] The
essential facts were common cause or uncontroverted. At all relevant
times the appellant was a duly registered legal practitioner. He
practised law at Shurugwi, in the Midlands Province. He was engaged
by the complainant's brother, one Mr Rambanapasi, a businessman
operating from Harare, to provide legal services to the complainant,
who lived in Shurugwi. The legal services were required in relation
to the complainant's matrimonial problems with her ex-husband, a Mr
Makiwa. The complainant paid the initial consultation fee. For over
two years the appellant conducted several legal proceedings on behalf
of the complainant. From time to time he would submit bills for
services rendered, and Rambanapasi would settle them, either
immediately or over time.
[3] One
of the disputes between the complainant and her ex-husband concerned
the division or redistribution of some immovable property which was
considered to be part of the matrimonial assets. In terms of a
judgment of the Magistrates' Court, that asset would be shared
equally between the ex-spouses. Either of the parties would be
entitled to buy the other out and keep the asset. Estate agents
valued the property at $5,000. The buy-out value of the half share
was agreed at $2,500. The complainant opted to buy out her ex-husband
and keep the property. From the evidence, she got $2,000 from
Rambanapasi but deposited $2,500 with the appellant. The money was
meant to finance the buy-out. It was not clear where the top-up came
from.
[4] Subsequently,
the complainant's ex-husband refused to accept the amount of $2,500
aforesaid, or to be bought out of his share altogether. He claimed he
had received legal advice that the asset was Government property over
which none of them had any saleable rights. As such, he could not be
seen to be accepting the $2,500 for something he could not deliver.
He said he had been advised that the Magistrates' Court's
judgment to that effect had been incompetent and therefore, incapable
of enforcement.
[5] The
evidence suggests that the complainant's ex-husband revised the
value of the asset from the initial $5,000 down to $3,000, of which
the sale value of the half share would be $1,500. The ex-husband
offered to pay the complainant this amount and keep the asset.
[6] In
his feedback report and advice to both the complainant and
Rambanapasi, the appellant agreed with the position that the asset
was Government property which could not be disposed of in the manner
directed by the court, except for the improvements on it. His own
advice on the way forward was that the parties and their legal
practitioners would have to meet once again and agree on the value of
the improvements, and the value of the half share that the
complainant's ex-husband could pay her, given that there was now a
dispute over the true value of the property.
[7] That
feedback report and advice by the appellant was on 28 July 2014.
There was no immediate response from either the complainant or
Rambanapasi. The appellant had last accounted to them on 11 November
2013. The amount due to him then had been $932. On 3 August 2014 the
appellant submitted to both the complainant and Rambanapasi a
detailed statement of account. It set out what work he had carried
out in terms of his mandate; what his charge-out rate was; the total
amount of time he had expended; what the gross total due by the
clients to him was, and what amount of deposit held in his trust
account was. The amount due to him on that statement was $232.
[8] Included
in the amount of the deposit held in trust was the sum of $2,500
aforesaid. The appellant's statement of account concluded as
follows:
“Be
advised therefore that you should pay the balance on our legal fees
being $232 after converting the $2,500-00 you had paid for collection
by Mr MAKIWA to our legal fees. Kindly pay on or before the 30th
of AUGUST 2014 failure [of] which we shall issue summons to you to
recover same. We shall not be in a position to render further
attendances unless we receive payment as advised. Any quaries [sic]
must be channelled [sic]
to us in writing for record keeping purposes.”
[9] By
e-mail dated 6 August 2014, i.e. three days after the appellant's
statement of account, Rambanapasi acknowledged the appellant's
letter of 28 July 2014, and the statement of account. But, among
other things, he expressed severe shock on the appellant's charges,
which he considered exorbitant. He also complained bitterly about
certain aspects of the appellant's conduct. He demanded what he
termed “remittance advices” from the very onset.
[10] The
relationship between the parties degenerated and irretrievably broke
down. Rambanapasi lodged a complaint against the appellant with both
the Law Society of Zimbabwe [“LSZ”],
and the police at Harare. In the course of their investigations, the
police enquired from the LSZ. The LSZ advised it was still looking
into the matter. But it brought to the police' attention the
provisions of section 20 of the Legal Practitioners Act, Cap
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.
[11] By
and by, the criminal case against the appellant was transferred from
Harare to Shurugwi. Rambanapasi was dropped as the complainant and
replaced with the complainant. The appellant was charged as
aforesaid. He pleaded not guilty and relied on section 20 of the
Legal Practitioners Act aforesaid as the basis for his entitlement to
the money. A full trial ensued. The State's evidence started and
ended with the complainant and Rambanapasi. The appellant gave
evidence. Initially he represented himself. Eventually he engaged
counsel.
[12] The
magistrate's reasons for convicting the appellant were multiple.
But the quintessence of her judgment was that, a dispute having
arisen between the appellant and Rambanapasi over the final bill, it
had been unlawful for the appellant to have become the judge over his
own cause by deciding how much he was entitled to, and then going on
to appropriate the amount from the trust account that had been meant
for a different purpose altogether.
[13] The
magistrate held that the provisions of section 20 of the Legal
Practitioners Act 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.
[14] In
his notice of appeal to this court, the appellant listed twelve
grounds. At the hearing, Mr Mudisi,
for the appellant, conceded that they were repetitive and
proliferate. He collapsed them into one single essence. This was that
the court a
quo
erred in convicting the appellant when the essential elements of the
crime, namely, intention and unlawfulness, had not been proved. He
said the circumstances of the case were such that the appellant had
been entitled to rely on the provisions of the Legal Practitioners
Act.
[15] On
the first day of the hearing of the appeal, Mr Mudisi
sprang a surprise and practically forced an indefinite adjournment.
He explained that following his attendance at some recent workshop on
continual legal education at which the Chief Justice of Zimbabwe had
raised concerns about some criminal matters going all the way to the
Supreme Court with notable patent defects in the charges, he had
reviewed the entire record of the appellant's case, including the
charge sheet, and grounds of appeal, and had discovered that the
charge laid against the appellant had been fatally defective for want
of averments of the essential elements of the crime. He said this was
a legal point which he was entitled to raise at any time of the
proceedings. He wanted to file supplementary heads of argument to
deal with the point. State Counsel said he would also have to file
supplementary heads in reply.
[16] When
the matter resumed, a great deal of energy was expended on the
technical point, during which, with all due respect, more heat than
light was generated. We stood down the point and allowed argument on
the merits. We would deliver one judgment on both the point in
limine
and, if need be, the merits. This now is our judgment.
[a]
Charge
allegedly defective
[17] The
charge against the appellant in the court a
quo
was framed as follows:
“THEFT
AS DEFINED IN SECTION 113[2][d]
OF THE CRIMINAL LAW [CODIFICATION AND REFORM] ACT CHAPTER 9:23
In
that on the 3rd
day of August 2014 and at Traikosh Complex, 103 Cape Street,
Shurugwi, Mavese Mapfumo, being a legal practitioner, converted money
which amounted to U$2,500-00 into his own use which was deposited by
Mirirai Tsikira in Mavese Mapfumo and Associates law Firm Trust
Account..”
[18] The
State Outline was a detailed account of the dealings between the
appellant and the clients over the period in question, and the
appropriation of the trust funds as charged.
[19] Mr
Mudisi
charged that the absence of the words or phrases 'intention' and
'unlawfulness', which should be intrinsic to the indictment, made
it incurably defective. Citing a plethora of cases; and invoking
section 146 of the Code, and section 70 of the Constitution, the
basic import of which is that an accused person is entitled to be
informed in sufficient detail of the charge he is facing, counsel
vigorously argued that this had not been done, and that, as a result,
the appellant had been severely prejudiced in the conduct of his
defence in that, even though himself a legal practitioner, he had not
quite appreciated the true purport of the charge. That was why, in
his defence, the argument concluded, the appellant had omitted to
challenge the absence of intention, and unlawfulness in his conduct,
but had merely rushed to invoke the provisions of section 20 of the
Legal Practitioners Act.
[20] Mr
Mudisi
further argued that the inherent defect in the charge could not
possibly have been saved by section 203 of the Code. This section
provides that an indictment, summons or charge that is defective for
want of any matter which is an essential ingredient of the offence,
shall be cured by evidence at the trial proving the presence of such
matter, unless such defect is brought to the court before judgment.
He said the evidence at the trial did not prove intention or
unlawfulness of the appellant's conduct, and that therefore the
hole or gap or defect in the charge had remained unrepaired.
[21] Mr
Chikwati,
for the State, argued that the charge was not defective; that even
though lacking precision or exactitude, it was drafted with such
adequate detail as to have sufficiently informed the appellant of the
offence with which he was being charged, and that indeed the
appellant had not been prejudiced in any way as he had quite
appreciated the charge and had competently pleaded to it.
Furthermore, Mr Chikwati
added, the evidence led at the trial had been so elaborate as to have
sufficiently covered any perceived loopholes in the indictment.
[22] The
appellant's point in
limine
was, with all due deference, a fanciful and whimsical academic
treatise, probably designed just to ground a moot room contest.
Mr
Mudisi
said the appellant did not have to concern himself with the citation,
but only with the narration of the charge. That is strange. The
appellant had to concern himself with the charge as a whole: the
citation, the narration and the State Outline. Moreso that he was a
practising lawyer.
[23] Whatever
the position at common law might have been, with the codification of
criminal offences in Zimbabwe, any person charged with an offence as
codified, has to refer to the section of the Code that the charge
refers to. In this case, the charge sheet, as read out to the
appellant in court, told him that he was being charged with the crime
of
theft as defined in section 113[2][d]
of the Code
[emphasis
added].
Section 113[2][d]
of 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
-
[emphasis
added]
[a] ……………………………………………….;
or
[b] ……………………………………………….;
or
[c] ……………………………………………….;
or
[d] converts
the property or part of it to his or her own use.”
[24]
Thus, “intention”, an essential ingredient of the charge, is
covered.
[25]
Sub-section [2] above says it is subject to sub-section [3].
Necessarily therefore, the appellant also had to concern
himself with this sub-section as well. It was the complete package
from the State. 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] ………………………………………….”
[26]
Thus, sub-section [3] negatives any unlawfulness in any intention
that might have been perceived as criminal. So, the charge preferred
against the appellant, just in the charge sheet alone, let alone the
detailed State Outline, contained all the necessary and essential
ingredients. And evidently, the appellant did appreciate both the
full import and purport of the charge. His defence targeted the
intrinsic aspects of the charge as laid out in section 113[2][d],
as read together with sub-section [3] of the Code.
[27] At
the hearing, Mr Mudisi
himself, wittingly or unwittingly, might have betrayed the position
that the point in
limine
was just an academic moot contest. After laying out what he
considered to be the model charge that the State ought to have
preferred against the appellant, he conceded, during some exchanges
with the court, that he would not have contested the point had the
charge excluded the citation, as long as the narration contained the
essential ingredients. What he was contesting was the flip side,
namely, the absence of the essential ingredients in the narration,
despite that the citation invoked them – a variance without a
difference!
[28] Thus,
it is our finding that while the charge preferred against the
appellant might have lacked precision and finesse, nonetheless, it
contained essential details as to have sufficiently informed the
appellant of the offence which he was facing. Furthermore, there was
no question that the appellant understood and appreciated the nature
of the offence which he faced. Among other things, he competently
answered to it. He was not prejudiced.
[29] In
the circumstances, the appellant's point in
limine
is hereby dismissed for lack of merit.
[b]
The merits
[30] Mr
Chikwati's
unflinching argument on the merits, as I understood him, and in my
own paraphrase, was that the appellant was guilty as charged because
he appropriated money that did not belong to his client, but to a
third party, namely the complainant; that his own client was
Rambanapasi who had engaged him, and was paying his bills; that
section 20 of the Legal Practitioners Act did not assist him because
he converted the trust funds before there had been any agreement with
his client on the level of his fees; and that unless and until his
bills had been taxed his conduct amounted to theft.
[31] Asked
how, even accepting all that, such conduct could be branded criminal,
Mr Chikwati
was adamant that the complainant was not the appellant's client;
the entire arrangement having been a stipulatio
alteri
situation where the appellant had been engaged to proffer services
for the benefit of a third party, but that contrary to the terms of
that stipulatio
alteri
the appellant had ended up unlawfully helping himself to the third
party's property. Simply defined, a stipulatio
alteri
is a contract between two people for the benefit of a third party.
[32] Reminded
that the court a
quo
had sat as a Criminal Court to try the guilt or otherwise of the
appellant, not as a Civil Court to try the civil rights or
obligations of the parties, Mr Chikwati
retorted that a single transaction or enterprise can give rise to
both civil and criminal proceedings. It became a merry-go-round; a
dog chasing its tail!
[33] The
court a
quo
completely misdirected itself in convicting the appellant in the
circumstances of this case, and especially for the reasons forming
the basis of its decision. At the hearing of the appeal, the State's
arguments were thoroughly misconceived and they lacked any factual or
legal grounding.
[34] Mr
Chikwati's
refrain that it was Rambanapasi, not the complainant, who was the
appellant's client, and that therefore, it was theft for the
appellant to have appropriated the complainant's money, not only
lacked factual probity, but was also legally unsound. It lacked
factual probity because when the relationship; the engagements; the
dealings and the conduct of the trio for the period in question, are
considered in their entirety and objectively, the appellant was
entitled to treat the complainant and her brother, Rambanapasi, as
his clients, either jointly or individually. This was so for a number
of reasons, not least the following:
-
Of
the contentious $2,500, if Rambanapasi gave the complainant only
$2,000 but the complainant ended up depositing $2,500 with the
appellant, should the appellant be condemned for assuming the
top-up, or difference, came from the complainant herself? Did he
have to concern himself with this anyway?
[35] There
are many other examples. The State should not cherry pick facts
selectively and ignore those that may be inconvenient.
[36] However,
and more importantly, whether Rambanapasi or the complainant was the
appellant's client is plainly a distinction without a difference.
It is neither here nor there. 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 Code, and section 20 of the Legal
Practitioners Act.
[37] 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 don'ts 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 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” [emphasis
added].
[38] Thus,
contrary to the reasoning of the court a
quo,
and to the ill-conceived arguments by the State before us, 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. 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.
[39] Mr
Chikwati
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 Rambanapasi. Yet the appellant took money that belonged to
the complainant who owed him nothing. Counsel kept going back to his
stipulatio
alteri
argument. With respect, that was one of the misconceptions that,
regrettably, we failed to dislodge him from.
[40] 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.
[41] Mr
Chikwati
said in the particular circumstances of this case actus
reus
was given and beyond contest. He said by it alone mens
rea
was also established. This is ludicrous. If a lawyer claims
entitlement to credit funds in his or her trust account for client,
because he or she believes he or she is owed fees; if section 20 of
the Legal Practitioners Act says he/she can unilaterally exercise the
right of set-off if the conditions to do so under the common law
exist; if section 113 [2][d],
as read with subsection [3] of the Code, says, or imputes that theft
of trust funds is only theft if there is an intentional conversion,
but that such conversion is excusable if the accused has properly and
transparently accounted in accordance with the terms of the trust,
how on earth does the lawyer's conduct in appropriating the trust
funds become criminal beyond any reasonable doubt?
[42] On
3 August 2014 the appellant accounted to clients and informed them he
had converted the $2,500 to his fees. The State did not, in the court
a
quo,
or anywhere else for that matter, prove that his conduct in doing so
was in breach of any terms of the trust so as to disqualify him from
protection under section 113[3] of the Code, and section 20 of the
Legal Practitioners Act. The State did not prove that the conversion
was for any purpose, let alone criminal, other than to recover what
he felt he was owed for more than two years.
[43] In
our view, this was purely a civil dispute that was improperly turned
into a criminal prosecution. If Rambanapasi and or the complainant
felt that the appellant's bills were exorbitant, their remedy was
to have them taxed.
[44] In
the circumstances, it is our finding that the appellant was wrongly
convicted. The appeal against conviction is hereby allowed. The
judgment of the court a
quo
is hereby set aside in its entirety. The sentences imposed are hereby
quashed.
24
January 2018
Hon
Mawadze J: I agree_______Signed
On Original
_________________
Mudisi,
Mutendi & Shumba,
legal practitioners for the appellant
National
Prosecuting Authority,
legal practitioners for the respondent
