There are separate requirements which must be satisfied before either a claim of right or a mistake of fact can succeed as a defence. See the case of Stainer v Regina 1956 R and N 199 and S v Davy 1988 (1) ZLR 238; see also a Guide to the Criminal Law of Zimbabwe, G. FELTOE (2^nd Edition published in 1984) p26-29.

As for the mistake of fact relating to the nature of the object which she picked from her push-tray; she gave us the impression that she believed it was her smaller cooking stick which she had picked and struck him with it.

This is, however, inconsistent with her first reaction to the whole incident when she ran up to Harusekwi Hedegwe and exclaimed that she had stabbed him. Had she not realized what she had done it is unlikely that she would have said this to the witness. In any event, the wound from which the deceased died is consistent with a stabbing rather than a strike blow which she would have delivered using that type of a weapon. Stabbing, in common parlance, is associated with sharp instruments rather than blunt ones.

The appellant was convicted by the Regional Magistrate's Court in Hwange of one count of stock theft in contravention of section 114 of the Criminal Law Code [Chapter 9:23]….,.

The State case is that the appellant was employed by the Ministry of Justice as the Messenger of Court for Hwange. One Mackenzie Ndebele had a dispute with his wife, Sibusiso Ndlovu, after the latter had sold certain matrimonial property pursuant of a court order granted in her favour by the Magistrates Court. Mackenzie Ndebele obtained a High Court order for the return of the property in question, which included a scotch cart box in the custody of the complainant, Mike Ndlovu, who had bought it from Sibusiso Ndlovu. The High Court order was to the effect that each of the parties was to bear its own costs. By letter dated 12 February 2007 (exhibit 1), Cheda and Partners, the legal practitioners representing Mackenzie Ndebele, instructed the appellant to proceed to recover their client's property in terms of the court order. The letter reads in part as follows:

“The Messenger of Court

P O Box 99

Victoria Falls

Dear Sir

RE: MACKENZIE NDEBELE VS SIBUSISO NDLOVU: CASE NO.1539/05

We refer to the above matter and attach hereto copy of a court order directing your office, under paragraph 1b, to recover all the property taken away from our client under case number CC13/03.  Such property includes certain cattle which our client has managed to locate. To that end, we attach hereto for your reference copies of the application for review and advise that our client will accompany you to recover certain head of cattle which belong to him and are in the custody of other people following distribution by Sibusiso Ndlovu.

He shall liase (sic) directly with you concerning your fees. We await your return of service which you have to give to our client.

Yours faithfully

(signed)

CHEDA AND PARTNERS”

In pursuance of those instructions, and in execution of the court order, the appellant demanded that Mackenzie Ndebele pay him ZS$8 million and 60 litres of fuel to cover his execution costs. When that was done, he, in the company of Mackenzie Ndebele, proceeded to Lusulu, Binga, to recover property from villagers who had it, including the complainant from where he intended to recover the scotch cart box. He did not recover the scotch-cart box as the complainant insisted on being refunded the purchase price he had paid to Mackenzie Ndebele's wife.

Sometime in June 2007, the appellant made another trip to Lusulu with Mackenzie Ndebele but before doing so, he charged him another 60 litres of fuel and Z$4million as his costs. The appellant told Mackenzie Ndebele that he wanted to punish all the people who had resisted with the property by charging them a beast each.

Upon arrival in Lusulu, the appellant gathered people, including the Veterinary Officer and some police officers, at the complainants homestead. Unfortunately, both the complainant and his wife were away from home. They had left three (3) children, the oldest of whom was aged 13, looking after the home. The appellant demanded an unspecified sum of money as his execution costs and when none was given, he directed that the cattle be penned. Whereupon he selected “a very fat heifer” which he said was equivalent to Z$15 million. It was unprocedurally cleared for slaughter.

After the heifer was slaughtered, the appellant took it in his car without skinning it and left for Hwange.

In his defence, the appellant stated that although the complainant was not a party to the proceedings between Mackenzie Ndebele and his wife and there was no order for him to pay the execution costs; he had to slaughter the heifer to recover his costs of travelling to Lusulu on two occasions. He did not explain why this was necessary when he had already levied the costs of execution against Mackenzie Ndebele.

The court a quo found that the State had proved its case beyond a reasonable doubt and having failed to find special circumstances as would entitle the appellant to a sentence other than the mandatory one, it sentenced him aforesaid.

The appellant was not happy with the decision of the court a quo and launched this three-pronged appeal.

In respect of conviction, counsel for the appellant submitted that the seizure and slaughter of the complainant's beast did not constitute theft as defined in section 114(2)(a) of the Criminal Law Code [Chapter 9:23] as the circumstances under which the beast was taken, in execution of a court order, transformed the actus reus from unlawful to lawful. He went on to argue that the appellant lacked the requisite mens rea in that he subjectively believed that he was entitled to recover execution costs from the judgment debtor. He took the view that the fact that the appellant observed all the formal requirements for slaughtering a beast by involving the Village Head, the veterinary service and the police shows that the appellant subjectively believed that he was acting lawfully and this entitled him to the defence of “claim of right.”

I do not agree.

Section 114(2) of the Criminal Law Code [Chapter 9:23], under which the appellant was charged, provides;

“(2) Any person who –

(a) Takes livestock or its produce -

(i) Knowing that another person is entitled to own, possess or control the livestock or its produce or realising that there is a real risk or possibility that another person may be so entitled; and

(ii) Intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control; or

(b) …,.; or

(c) …,.; or

(d) …,.

Shall be guilty of stock theft and liable -

(e) If the stock theft involved any bovine or equine animal stolen in the circumstances described in paragraph (a) or (b), and there are no special circumstances in the particular case as provided in subsection (3), to imprisonment for a period of not less than nine years or more than twenty-five years.”

In casu, the appellant knew that the complainant was entitled to own, possess and control the heifer.  Notwithstanding such knowledge, and intending to permanently deprive the complainant, proceeded to take the beast using his position as the Messenger of Court. This was done in the absence of the complainant. In my view, the actions of the appellant fell within the provisions of section 114 of the Criminal Law Code [Chapter 9:23]. The appellant was armed with a court order in which only Mackenzie Ndebele and Sibusiso Ndlovu were parties. That court order specifically provided that “there shall be no order as to costs;” meaning that neither of the named parties was to bear the other's costs. What is more, the complainant was not a party cited in the court order he was executing and neither was he directed to bear the costs of execution. Indeed, the appellant went on to issue a Notice of Attachment (exhibit 2) in which, not only was the complainant's name conspicuous by its absence, but the property being attached was a scotchcart.

That notwithstanding, the appellant inexplicably proceeded to attach, slaughter and take away the complainant's heifer. The appellant did not even take away the heifer for sale by public auction, as would be expected of a Messenger of Court executing a writ. According to the appellant's own witness, Andrew Chihembekedza, who was driving the appellant, they took the carcass straight to the appellant's home - even as it had not been skinned. We can only speculate what happened to the carcass thereafter.

There can be no worse case of impunity by a court official.

Here is an official of the court who has no less than 13 years experience, who should be taken to know pretty well that he cannot just seize people's property without the authority of the court, and has been paid anyway, but who decides that he would arrogate to himself the power of the court and award himself costs he scarcely deserved. The appellant was a law unto himself when he got to Lusulu on that assignment. It was for this reason that he blissfully told Mackenzie Ndebele that he would appropriate a beast each from those villagers who resisted his overtures.

In doing so, he was acting outside the law and nothing can turn this unlawful misadventure into a lawful one as counsel for the applicant would want the court to believe…..,.

(1) The appeal against conviction is hereby dismissed.

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 10^th 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= 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= 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 Shareholders Agreement would be drawn up to specify the exact terms of the dissolution.

The Shareholders 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 first and fourth issues are common cause.  The second and third 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 Fredrick W. A. 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 the 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…,.”…,.

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 4^th 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 4^th 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.”…,.

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, 3^rd edition…,.

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 SC71-83.

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…, 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 summarised 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 15^th 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 Garvin 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; Derick Conroy and Garvin Johnson were to take the other 6.

(b) Derick Conroy and Garvin Johnson were to take the generator and quirl bowl along with some other equipment. The appellants were to remain with the 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 Shareholders Agreement was never reached and the partnership was never dissolved. Consequently, Fredrick W. A. Lutzkie, in that sense, never really acquired ownership of the generator and quirl bowl. Mr Lutzkie later sold the property to a third 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, the appellants stated that while in the proposed dissolution of the partnership, shareholding in Endless Fun (Pvt) Ltd was to be transferred to Fredrick W. A. 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 (Pvt) Ltd as stipulated in clause 6 of exhibit IX…,.

On the other hand, Fredrick W. A. Lutzkie, in his evidence, stated that he paid a sum of R1,000,000= for the purchase of Endless Fun (Pvt) Ltd in a transaction involving four (4) companies…,.

Faced with this glaring dispute of fact, the court a quo failed to resolve it by assessing the credibility of Mr Lutzkie and the 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 Fredrick W. A. Lutzkie's credibility as a witness.

Astoundingly, the court not only spent quite a considerable amount of time criticizing the 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…, shows the purchase price for the sale of 35% shares in Doddieburn Holdings as R3,200,000= and not R1,000,000=. Logically, if the purchase price is R3,200,000= and only R1,000,000= is paid, there was no full payment; as such, the agreement was not perfect as Fredrick W. A. Lutzkie was in mora. It is common cause that Fredrick W. A. Lutzkie only paid R1,000,000=…,. 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. Fredrick W. A. 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 (Pvt) Ltd 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”…,.

Further…, 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 (DC 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.”…,.

I find Fredrick W. A. Lutzkie's evidence to be unsatisfactory in two material respects. 

(i) 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. 

(ii) 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 Fredrick W. A. Lutzkie was unable or unwilling to divulge his shareholding in the other two companies, namely, Sihambasonke Mine and Abangane Mine. He only mentioned 35% in Doddieburn and 100% in Endless Fun (Pvt) Ltd. 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…,:

“…, 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).”…,.

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, the 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.

The appellants, who are husband and wife, were convicted on the basis that they sold land, which did not belong to the first appellant, to various complainants, through misrepresentations, which resulted in the complainants being prejudiced of their money.

The State alleged that the land in question belonged to one Mr Rogerio Barbosa De Sa.

At the hearing of the appeal, counsel for the respondent made a concession that indeed there was no evidence on record to prove that the land in question belonged to Mr Rogerio Barbosa De Sa, and that the appeal be allowed. In our view, this was a properly made concession.

The main issue the trial court should have determined, was, who was the owner of the land in question?

The land at the centre of the trial was known as Christmas Gift (Pvt) Limited. The evidence of Mr Rogerio Barbosa De Sa was to the effect that at one point he offered 15% shares to the first appellant in DMC Holdings but the first appellant never took up the offer. He, in fact, said the first appellant did not pay for the shares, and, therefore, had no claim to Christmas Gift (Pvt) limited. The evidence of Mr Rogerio Barbosa De Sa shows that he was a close friend of both appellants whom he trusted very much. On the other hand, the evidence of the first appellant was that he paid $1,0000= in free funds held by him in Midlands Bank (now HSBC) in 1988 through inter-bank transfer since he and Mr De Sa both held accounts with the same bank. A perusal of the record shows that DMC Holdings (Pvt) Limited comprised four subsidiary companies. These are;

1. Christmas Gift (Pvt) Limited; (the land in question).

2. Keidans Woodworking (Pvt) Limited;

3. Zambesia Metal Trading and Manufacturing Company (Pvt) Limited; and

4. Woodgate Investments (Pvt) Limited.

Exhibit 31 is a Memorandum of Agreement entered into by and between Rogerio Barbosa de Sa and the first appellant, Mr Wilford Edward Nyambo, on  25 October 1988, wherein  Edward Nyambo was offered to purchase 15% shares in DMC Holdings (Pvt) Limited. Clause 7 of the Agreement read as follows:-

“With effect from the date of this agreement, the transferee (DR. Nyambo), shall be entitled to full participation rights in the capital and profits of the company as if he had exercised his option to purchase the said shares on this date. Any distributions by the company shall be payable to the transferor (De Sa) as agent of the transferee in so far as such distributions relate to the shares subject to this option.”

To confirm the first appellant's story that he had the right to deal with the land as he did are two letters, exhibits 32 and 36. Exhibit 32 is a letter written by Mr Rogerio De Sa, dated 28 January 1993, authorising a Mr Frasser, of Nick Collins and Associates, to release all files relating to Christmas Gift (Pvt) Limited to DR. Nyambo (the first appellant). Further, there is exhibit 36 in the record, which is a letter written and signed by both the first appellant and Rogerio De Sa, as Directors of Christmas Gift (Pvt) Limited, to the Chief Planning Officer for Gweru, dated 13 June 1995, wherein they said:-

“We wish to confirm that DG Machakaire is duly authorised by us to carry out all applications and all necessary work to be presented to yourselves for the above sub-division.

Yours faithfully

For Christmas Gift (Private) Limited.”

A further perusal of the record shows nothing to show that Mr Rogerio De Sa later withdrew the authority he gave to the first appellant. In fact, the first appellant, being assisted by the second appellant who was responsible for all administrative issues, acted in terms of the Memorandum of Agreement that the first appellant entered with Mr Rogerio De Sa.

Counsel for the appellants even referred us to the case of Anthony Hickey v (1) DMC Holdings (Private) Limited (2) Christmas Gift (Private) Limited (3) Rogerio Barbosa Azevedo De Sa (4) National Social Security Authority, SC17-14, which showed that Anthony Hickey holds a 30% shareholding in DMC Holdings (Pvt) Limited, and that DMC Holdings (Pvt) Ltd is a 100% shareholder in Christmas Gift (Pvt) Limited. This means that Rogerio Barbosa de Sa is not the sole owner of Christmas Gift (Pvt) Limited.

In the circumstances the court erred by concluding that the first appellant had no right in the land in question. There was, therefore, no misrepresentation committed by the appellants.

The conviction of the appellants was therefore improper. In the result, the appeal is allowed. The conviction is quashed and sentence is set aside.

Background

In the Government Gazette published on 7 November 2003, notice was given, in terms of the Land Acquisition Act [Chapter 20:10], that Government intended to compulsorily acquire the Remaining Extent of Olympus Block for the purposes of resettlement. In terms of the notice, the appellant was required to vacate the property within a period of forty-five days. The appellant remained in occupation of the property and indicated to the Ministry of Lands officials that during the land redistribution exercise, in 2003, a large portion of his farm, measuring approximately 8,900 hectares was acquired by the Government for resettlement. The acquired land was allocated and subdivided for resettlement by various A1 farmers. The Ministry of Lands officials visited the farm with a map and indicated that he would be allowed to remain on the Remaining Extent of Olympus block measuring 1,000 hectares. He was shown the boundaries on the map and was advised that the A1 farmers surrounding him would dip their cattle at his dip tank. The Lands Committee also requested the appellant to assist the A1 farmers in maintaining their livestock. The map handed to the appellant forms part of the appeal record and confirms that a portion on the map was marked “Remaining Extent of Olympus” was reserved for the farmer (the appellant). 

It is that piece of land that is the subject of this appeal.

On 25 August 2011, the Minister of Lands and Rural Resettlement signed on offer letter in respect of the Remaining Extent of Olympus Block in favour of Mr Muwoni. When Mr Muwoni attempted to evict the appellant from the land in dispute, the appellant communicated with the District Lands Officer and reminded him of the map and that he had been guaranteed that he would remain on the allocated land.  The dispute could not be resolved resulting in the criminal prosecution of the appellant for failing or refusing to vacate gazetted land.

I now propose to deal with the issues for determination in seriatim:

WHETHER THE APPELLANT HAD A PERMIT

The learned trial magistrate held that the only kind of permit envisaged by the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] was a written document, and not any other kind of permit.

In my view, the reasoning is flawed.

As at the date of the arrest and prosecution of the appellant, there was no statutory provision setting out what a permit should provide in form and content. The legislature, having seen the need to clarify the legal requirements regarding permits, and to consolidate the practice in this regard, passed the Agricultural and Land Settlement (Permit and Conditions) Regulations, Statutory Instrument 53/2014. These Regulations now provide clearly for the issue of a written permit to occupants and beneficiaries of gazetted land. The Regulations further set out a pro-forma of the permit contemplated in the Gazetted Lands (Consequential Provisions) Act.

In his reasons for sentence, the learned trial magistrate had this to say:

“I have particularly considered that the accused's moral blameworthiness was very low. Indeed, he committed this offence under the mistaken belief that the map that he was given, together with the endorsement on it 'Remaining Extent for farmer', amounted to a permit. Had he not held this mistaken belief, he would certainly not have committed this offence. And the belief was not unreasonable, regard being had to the apparent conduct of the officials from the Ministry of Lands who gave accused the map I have referred to above.”…,.

The magistrates' comments cannot be faulted.

The appellant led oral evidence, which was not disputed, to the effect that besides the oral permission and authorization, there was conduct, by Ministry of Lands' officials, which amounted to overt acceptance of his occupation of the property and the legitimacy of his presence on that piece of land.

In my view, before the promulgation of the Agricultural and Land Settlement (Permit and Conditions) Regulations, S.I.53 of 2014, the appellant was perfectly entitled to assert that the map given to him by authorized officials, coupled with the verbal assurances given to him by Ministry of Lands officials, amounted to a permit as envisaged by the Gazetted Lands (Consequential Provisions) Act.

It is settled law that there is a presumption against retrospectivity of legislation, and that legislation does not govern past incidences, unless the contrary is expressly stated or necessarily inferred from the legislation.

See Nkomo and Another v Attorney General and Others 1993 (2) ZLR 422 and Walls v Walls 1996 (2) ZLR 117.

It is clear that before the passing of the Agricultural and Land Settlement (Permit and Conditions) Regulations, S.I.53 of 2014, there was no legislative provision requiring that a permit should only be in writing. There was no legislative provision setting out the form and content of such a permit. In practice, therefore, responsible Government officials issued permits by endorsement on maps, by verbal and visual identification and allocation of portions of land to previous owners.

WHETHER THE LEARNED MAGISTRATE MISDIRECTED HIMSELF IN FINDING THAT THE APPELLANT WAS IN UNLAWFUL OCCUPATION OF GAZETTED LAND

Once the learned magistrate made a specific finding that the appellant held a reasonable belief that he had a lawful right to remain on the property in dispute as a result of advice given to him by officials of the Ministry of Lands, then the defence of a claim of right would be available to him.

The position was articulated in the case of S v Zemura 1973 RLR 357, where it was held that when an accused person is given advice on an administrative matter by a responsible public official whose duties include the administration of the particular statute to which the matter relates, and where the accused genuinely believes that the official is sufficiently familiar with the Act, then, if the accused bona fide acts on that advice, he should be permitted to set up as an exception to the ignorantia juris rule, the defence of claim of right.

In casu, it is not in dispute that the appellant openly occupied the piece of land on the advice of the Ministry of Lands officials. He was encouraged to assist the A1 farmers surrounding him. He was given a map indicating the portion of land allocated to him. He held the genuine belief that he was entitled to remain in occupation in accordance with the law. 

I am not satisfied that the State proved the essential elements of the charge beyond reasonable doubt.  As I have already explained, the trial magistrate's comments in his reasons for sentence, do give credence to the conclusion that the conviction is unsafe…,.

In the circumstances, given the facts the learned court a quo found to have been proved, it was improper to convict the appellant. The court a quo accepted that the appellant acted on the advice of the Government officials from the Ministry of Lands. It was accepted that, but for that advice, the appellant would not have committed the offence charged.

I would, accordingly order as follows:

(1) The appeal is hereby allowed.

In order to constitute a criminal act, there must be a guilty mind accompanying an actus reus i.e. the circumstances constituting criminal conduct.

This is an application for bail pending appeal against both conviction and sentence.

The applicant pleaded guilty to, and was duly convicted, of Stock Theft as defined in section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. He was sentenced to 12 years imprisonment of which 3 years imprisonment were suspended for 5 years on condition of future good behaviour. He remained with an effective sentence of 9 years.

The undisputed facts were that the applicant proceeded to the cattle pen of the complainant at night, around 2300 hours, and removed one brown ox. He drove the ox to Macheke Business Centre and tied the beast with a rope to a tree. He then began to look for buyers. He, unfortunately, approached one Farai Maimba, the owner of TC Butchery, who, instead of buying the ox, tipped the police. The applicant was arrested and the stolen ox, valued at $650=, was recovered.

In his Notice of Appeal, the applicant attacked the conviction and sentence of the court a quo on the basis that the trial court failed to take into account the employer and employee relationship that existed between the applicant and the complainant. He claimed that he had worked for the complainant who had not paid him for 8 months. When asked for special circumstances his explanation was as follows -

“The complainant did not pay me as he promised and I ended up taking his beast unlawfully. That is all.”

The applicant, in fact, raised a defence of claim of right which was dismissed by the trial court as not constituting special circumstances.

The application is opposed by the respondent.

The guiding principles in an application of this nature were clearly outlined in S v Dzawo 1998 (1) ZLR 536 as follows -

(a) Whether there are prospects of success on appeal.

(b) The risk of abscondment.

(c) The right of an individual to liberty taking into account the delay that may be encountered in finalizing appeals.

Counsel for the respondent submitted that the applicant was properly convicted and dismissed the defence of claim of right. She contended that the claim of right would not succeed in terms of section 122 of the Criminal Law (Codification and Reform) Act [Chapter 9.23], in that the applicant had taken possession of the ox, not intending to hold the property as a pledge or security pending the satisfaction of a debt owed by the complainant. He intended to deprive the complainant permanently hence he sought a buyer.

Section 122 of the Criminal Law (Codification and Reform) Act [Chapter 9.23], which could be applicable to the defence raised by the applicant, reads as follows -

“122 Pledge–taking cases

(1) Where a person takes possession or control of property capable of being stolen which is owned, possessed or controlled by another person, intending to hold the property as a pledge or security pending the satisfaction of a debt owed by that other person, he or she shall not be chargeable with theft of the property or stock theft unless he or she intended to deprive the other person permanently of his or her ownership, possession or control of the property, but he or she may be charged with unauthorised borrowing or use of the property.

(2) A person who takes property capable of being stolen, intending to deprive the owner permanently of his or her ownership, contrary to the terms on which the person received possession or control of it from the owner as a pledge or security pending the satisfaction of a debt owed to him or her, shall be chargeable with theft or stock theft, as the case may be.”

In casu, the applicant went to the cattle pen of the owner at night. He took the property without the knowledge or permission of the owner. He was arrested in the process of selling the ox to a butcher. He therefore, intended to deprive the owner permanently. He cannot raise a defence of claim of right.

His chances of success on appeal against conviction are nil.

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 [Chapter 9:23] [“the Code”]. The amount involved was $2,500=….,.

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 Mr Rambanapasi would settle them, either immediately or over time.

One of the disputes between the complainant and her ex-husband concerned the division or re-distribution 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 Mr 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.

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.

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.

In his feedback report and advice to both the complainant and Mr 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.

That feedback report and advice by the appellant was on 28 July 2014. There was no immediate response from either the complainant or Mr 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 Mr 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=.

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= you had paid for collection by Mr MAKIWA to our legal fees. Kindly pay on or before the 30^th 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.”

By e-mail dated 6 August 2014, i.e. three days after the appellant's statement of account, Mr 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.

The relationship between the parties degenerated and irretrievably broke down. Mr 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 Law Society of Zimbabwe (LSZ). The Law Society of Zimbabwe (LSZ) advised it was still looking into the matter, but, it brought to the police's attention the provisions of section 20 of the Legal Practitioners Act [Chapter 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.

By and by, the criminal case against the appellant was transferred from Harare to Shurugwi. Mr 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 Mr Rambanapasi. The appellant gave evidence. Initially, he represented himself. Eventually, he engaged counsel.

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 Mr 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.

The magistrate held that the provisions of section 20 of the Legal Practitioners Act [Chapter 27:07] 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.

In his Notice of Appeal to this court, the appellant listed twelve grounds. At the hearing, counsel 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 [Chapter 27:07].

On the first day of the hearing of the appeal, counsel for the appellant 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.

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….,.

[b] The merits

Counsel for the State'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 Mr Rambanapasi who had engaged him and was paying his bills; that section 20 of the Legal Practitioners Act [Chapter 27:07] 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.

Asked how, even accepting all that, such conduct could be branded criminal, counsel for the State 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.

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, counsel for the State 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!

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.

Counsel for the State's refrain that it was Mr 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, Mr Rambanapasi, as his clients, either jointly or individually. This was so for a number of reasons, not least the following:

(i) The evidence never placed Mr Rambanapasi and the complainant into any distinct compartments of client and third party beneficiary as it was urged before us.

(ii) It was the complainant who paid the appellant the initial consultation fee. Nowhere does the record say she did this as a conduit pipe for Mr Rambanapasi.

(iii) Of the contentious $2,500=, if Mr 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?

(iv) When the case began, Mr Rambanapasi, not the complainant, was the complainant.

(v) When the appellant reported back and accounted to clients, he would write to both Mr Rambanapasi and the complainant.

There are many other examples. The State should not cherry pick facts selectively and ignore those that may be inconvenient.

However, and more importantly, whether Mr 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 Criminal Law (Codification and Reform) Act [Chapter 9:23] and section 20 of the Legal Practitioners Act [Chapter 27:07].

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 of the Legal Practitioners Act [Chapter 27:07]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.”….,.

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.

Counsel for the State 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 Mr 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.

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.

Counsel for the State 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 Criminal Law (Codification and Reform) Act (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?

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.

In our view, this was purely a civil dispute that was improperly turned into a criminal prosecution. If Mr Rambanapasi and/or the complainant felt that the appellant's bills were exorbitant, their remedy was to have them taxed.

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.

The accused faced financial challenges while he was looking after the complainant's beasts for eight years and he was without a salary for that whole period….,.

An extraordinary thing about this case is the fact that the complainant was away in South Africa for eight years. He knew very well that he had left the accused, whom he had employed as a herd-boy looking after his cattle, but for all those eight years he never sent money for the salary of the accused and for the upkeep of the cattle. Eight years is a very long time for anyone to survive without a salary if they are employed. Obviously, the accused had family responsibilities and for him to deal with them he needed money. With his employer having gone away for years, the accused was put in the predicament of having to dispose of the complainant's beasts whenever he faced financial challenges.