CHEDA J: This is an application for bail
pending appeal against both conviction and sentence.
Applicant was
charged with fraud as defined in section 136(a) of the Criminal Law
Codification Reform) Act [Chapter 9:23].
The background of this case is that applicant defrauded Dorris Dewa of
an amount of R40 000-00 while operating accompany called Defiant properties.
Applicant
carefully crafted a plan wherein one Mpilo Nyathi masqueraded as one Magadelene
Sibanda, the owner/seller of a house. It
is through that scheme that Dorris Dewa was duped into parting with the said
amount on the belief that she was buying a house from the owner yet infact and
in truth the person who was dealing with her was Mpilo Nyathi who is not the
owner of the said house. Mpilo Nyathi
appeared in court, pleaded guilty to the charge, was convicted and sentenced to
30 months imprisonment, part of which was suspended. Appellant pleaded not guilty but was
convicted and was referred to this court for sentence. He was subsequently sentenced to 8 years
imprisonment of which 1 year was suspended on the usual conditions of future
good behaviour.
Appellant's
contention is that this appeal has bright prospects of success on appeal. His belief is based on his view that the
trial court did not sufficiently warn itself of the status of Mpilo Nyathi as
an accomplice witness. These courts are
indeed alive to the need for the application of this cautionary rule. One of the reasons for this rule is to
eliminate the temptation by an accomplice who would as a self-preservation
measure falsely implicate his/her accomplice.
The factors
to be taken into account in determining the possibility of falsely implicating
the other party is the perceived benefit which will flow to the accomplice if
he/she lies against the accused. If
there is no benefit accruing on the witness (accomplice) the court will be
persuaded to believe his/her story. In casu
Mpilo Nyathi had already received her just dessert and therefore there was no
other expected benefit on her way.
Mpilo Nyathi
was given Magadalene Sibanda's Identity card in order to mislead the
complainant. This deceit was
orchestrated by appellant and jointly executed by both, appellant and Mpilo
Nyathi, hence her plea of guilty as
there was no way she could have pleaded otherwise.
For that
reason alone, the trial court was aware that having applied the cautionary rule
the need to falsely implicate appellant was not present in view of the
overwhelming evidence presented by Mpilo Nyathi.
In my opinion
appellant's conviction was proved beyond reasonable doubt and as such
applicant's prospects of success on appeal are not bright.
With regards
to sentence, the court took into account that applicant's personal
circumstances and weighed them against the seriousness of the offence, namely:
(1) the amount involved,
(2) that nothing was recovered, and
(3) the modus operandi applied
by the applicant, that is, the careful planning and execution of his plan.
The sentence in my opinion is not manifestly excessive in
the circumstances bearing in mind that sentencing is at the discretion of the
court. In addition thereto, this type of
offence is on the increase, the need for deterrence is paramount.
The application is dismissed.
Mushange and
company, applicant's legal practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
