This appeal from the High Court has its genesis in the Magistrates Court which acquitted both appellants on one charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and, secondly, operating an unregistered trust in contravention of section 9 of the ...
This appeal from the High Court has its genesis in the Magistrates Court which acquitted both appellants on one charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and, secondly, operating an unregistered trust in contravention of section 9 of the Private Voluntary Organisations Act [Chapter 17:05].
Aggrieved by the acquittal of both appellants on the first Count the respondent appealed to the High Court (the court a quo).
The court a quo, after full contest, found that the trial court erred and misdirected itself in that it misconstrued the facts in acquitting both accused. On the basis of such finding, it adjudged that the trial court ought to have found both accused guilty as charged. It thus upset the judgment acquitting the appellants and issued the following order:
“Accordingly, the court orders as follows:
1. The appeal against the acquittal of first and second respondents (now appellants) in CRB R856 succeeds.
2. The matter is remitted back to the trial court for sentencing.”...,.
FACTUAL BACKGROUND
The facts giving rise to both charges are hotly contested in the main. What is however not in dispute is that the complainant, Douglas Mamvura, was the owner of a company called Hedgehold Trading (Pvt) Ltd trading as Manna Brands.
On the other hand, the appellants were the owners of an agri-business styled Makonde Industries. The business was in financial distress and consequently under liquidation.
Desirous to revive their agri-business, the appellants approached the complaint with a proposal for Hedgehold Trading (Pvt) Ltd to buy the troubled agri-business and assume its liabilities. It was a term of the agreement that the complainant would allot the appellants shares in the company.
It was further proposed and agreed, that, because the complainant had a clean financial record with the Banks, he would be responsible for obtaining loans from his Bank, and other financiers, to fund the new joint venture agri-business under the style of Hedgehold (Private) Limited.
The complainant bought into the idea and it was agreed, that, as the sole financier of the new joint venture rebranded Hedgehold (Pvt) Ltd, he would be one of the Directors, Executive Chairman, and majority shareholder of the company. The other minority shareholders would be the two appellants and the late Chimbindi Fanuel. Open Tribe Foundation Trust was to be the fifth shareholder.
The initial CR2 allotted the company's shares as follows:
1. Douglas Mamvura (Complainant) 75%
2. Tangwena Israel (1st Appellant) 11%
3. Muocha Tonderai (2nd Appellant) 5%
4. Chimbindi Fanuel (late) 5%
5. Open Tribe Foundation Trust 4%
It is common cause that the fifth shareholder, Open Foundation Trust, was unregistered. Its object was nevertheless to cater for the welfare of underprivileged orphans, widows, HIV and AIDS victims.
This forms the basis of the second allegation against the appellants, which is however not relevant to this appeal.
