The
appellant is facing charges of fraud (i.e. three counts) as defined in section
136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The modus
operandi in all the matters seems to
be more or less similar.
The
appellant is a Managing Director of Sable Logistics, a company that does
clearing of imported goods and is based in South Africa. The appellant received
money for clearing and transporting the complainant's consignment from South
Africa. He did not clear the goods and did not transport them to Zimbabwe.
Instead, he fraudulently converted the money into his own use.
The
applicant did all this when he was out of bail on a similar matter.
On
15 September 2011, the appellant applied for bail pending trial before a
Bulawayo magistrate. The learned
magistrate determined that the appellant was not a good candidate for granting
of bail and consequently denied him bail.
This is
an appeal against this finding of the magistrate.
The
appeal is opposed by the respondent on the ground that the magistrate exercised
his discretion properly and there was no misdirection. Further, it cannot be
said that the exercise of the discretion by the magistrate defies reason and
common sense or is characterized by misdirection. In S v Makamba SC30-40, it was held that such an
appeal against a refusal to grant bail is an appeal in a narrow sense. The
powers of the appeal court to interfere with the judgment of the lower court
are limited to a finding of an unreasonable exercise of court a quo's
discretion with the resultant effect of a substantial miscarriage of justice.
In
casu, the learned magistrate pointed
out that the appellant committed three serious charges of fraud. The penal
clause evinces that fraud is a serious offence. The monies involved in these
offences are substantial and as alluded to above, the same modus operandi was
used to dupe the complainants into parting with their monies. The systematic
dealing and wheeling with the complainants betrays a criminal element. In my
view, the court a quo did not err in its finding that looking at the nature of
the charges and the strength of the case for the prosecution the appellant was
likely to abscond and not stand trial.
