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HHH08-10 - CFX BANK LIMITED vs RTO ENGINEERING [PRIVATE] LIMITED and MESSENGER OF COURT

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Sentencing-viz corporate entities.
Sentencing-viz restitution re section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Sentencing-viz compensatory orders re section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz appeal re the principle that the noting of an appeal automatically suspends the execution of the order appealed against iro criminal proceedings.
Procedural Law-viz appeal re the rule that the noting of an appeal automatically suspends the operation of the judgment appealed against iro criminal proceedings.
Procedural Law-viz the principle that the noting of an appeal automatically suspends the execution of the judgement appealed against re criminal proceedings iro section 63 of the Magistrates Court Act [Chapter 7:10].
Procedural Law-viz the rule that the noting of an appeal automatically suspends the operation of the order appealed against iro section 63 of the Magistrates Court Act [Chapter 7:10].
Procedural Law-viz rules of construction re exhaustive list iro expressio unius est exclusio alterius.
Procedural Law-viz rules of interpretation re inexhaustive list iro the eiusdem generis rule.
Fraud-viz section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Procedural Law-viz rules of construction re statutory provision iro vague provisions.
Procedural Law-viz rules of interpretation re statutory provisions iro ambiguous provisions.
Sentencing-viz restitution re section 370 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Sentencing-viz compensatory orders re section 370 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of construction re vague provisions iro intention of the legislature.
Procedural Law-viz rules of interpretation re ambiguous provisions iro legislative intent.
Procedural Law-viz jurisdiction re monetary jurisdiction iro section 367 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of construction re conflicting statutory provisions iro the notwithstanding clause.
Procedural Law-viz rules of interpretation re conflicting provisions iro the non-obstante clause.
Procedural Law-viz jurisdiction re monetary jurisdiction iro S.I.21 of 2009.
Procedural Law-viz jurisdiction re monetary jurisdiction iro SI 21 of 2009.
Procedural Law-viz jurisdiction re monetary jurisdiction iro S.I.21/2009.
Procedural Law-viz jurisdiction re monetary jurisdiction iro SI 21/2009.
Procedural Law-viz jurisdiction re monetary jurisdiction iro S.I.21/09.
Procedural Law-viz jurisdiction re monetary jurisdiction iro SI 21/09.
Procedural Law-viz jurisdiction re monetary jurisdiction iro Statutory Instrument 21 of 2009.
Sentencing-viz restitution re section 367 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Sentencing-viz compensatory orders re section 367 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Fraud and Criminal Promise

This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act.

It was also submitted, on behalf of the applicant, that, the trial magistrate, in ordering restitution in the sum of USD$250,000 applied a parallel market exchange rate to the sum of ZWD16.1 trillion, which was unlawful and was not supported by evidence led at the trial and was contrary to the Reserve Bank of Zimbabwe letter designating an exchange rate of ZWD3000 to USD1 as being the exchange rate.

The correct version of facts on which the applicant was charged and convicted is that on 6 March 2008, and in Harare, R.T.O. Engineering (Pvt) Limited supplied the applicant Treasury, and not an individual employee, with Z$16.1 trillion which was to be transferred into some beneficiaries' accounts for the purposes of securing free funds, which funds were intended to buy some mechanized farm equipment. The applicant, thereafter, unlawfully misrepresented to RTO Engineering that it had transferred the money into the beneficiaries' accounts by originating 'swift transfers', and, by means of that misrepresentation caused R.T.O Engineering to believe that the transactions had been effected when in fact only a portion had been so effected causing an actual prejudice of USD$250,000.

The court was advised, that, the court a quo had accepted the fact that upon being paid by R.T.O. Engineering (Pvt), the applicant generated swift confirmations, which are electronic printouts that can only be generated by an authorised dealer after logging onto the international swift platform. 'Swift' is short for 'Society for the World Wide Funds Transfer'.

Upon being paid, the applicant generated the swift transfer to Tatumarchesan in Brazil for an amount of $100,000 only.

The amount paid by RTO Engineering had been meant to raise $351,000 of which $100,000 was sent to Brazil. $251,000 disappeared, and, it is that amount for which the court ordered compensation in the sum of USD$250,000.

It is therefore not correct for the applicant to argue, that, the court a quo failed to use the exchange rate applicable at the time. The court was correct in ordering compensation in the amount actually suffered by R.T.O Engineering.

Sentencing re: Fraud and Criminal Promise

This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act.

It was also submitted, on behalf of the applicant, that, the trial magistrate, in ordering restitution in the sum of USD$250,000 applied a parallel market exchange rate to the sum of ZWD16.1 trillion, which was unlawful and was not supported by evidence led at the trial and was contrary to the Reserve Bank of Zimbabwe letter designating an exchange rate of ZWD3000 to USD1 as being the exchange rate.

The correct version of facts on which the applicant was charged and convicted is that on 6 March 2008, and in Harare, R.T.O. Engineering (Pvt) Limited supplied the applicant Treasury, and not an individual employee, with Z$16.1 trillion which was to be transferred into some beneficiaries' accounts for the purposes of securing free funds, which funds were intended to buy some mechanized farm equipment. The applicant, thereafter, unlawfully misrepresented to RTO Engineering that it had transferred the money into the beneficiaries' accounts by originating 'swift transfers', and, by means of that misrepresentation caused R.T.O Engineering to believe that the transactions had been effected when in fact only a portion had been so effected causing an actual prejudice of USD$250,000.

The court was advised, that, the court a quo had accepted the fact that upon being paid by R.T.O. Engineering (Pvt), the applicant generated swift confirmations, which are electronic printouts that can only be generated by an authorised dealer after logging onto the international swift platform. 'Swift' is short for 'Society for the World Wide Funds Transfer'.

Upon being paid, the applicant generated the swift transfer to Tatumarchesan in Brazil for an amount of $100,000 only.

The amount paid by RTO Engineering had been meant to raise $351,000 of which $100,000 was sent to Brazil. $251,000 disappeared, and, it is that amount for which the court ordered compensation in the sum of USD$250,000.

It is therefore not correct for the applicant to argue, that, the court a quo failed to use the exchange rate applicable at the time. The court was correct in ordering compensation in the amount actually suffered by R.T.O Engineering.

Appeal and Leave to Appeal re: Suspension of Orders Pending Appeal and the Effect of Noting an Appeal

This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act....,.

It was also submitted, on behalf of the applicant, that, the issuance of the writ of execution by the Clerk of Court was improper as it was issued at a time when an appeal had been filed. The subsequent attachment by the Messenger of Court was equally defective.

It was further argued, that, the order of compensation, which prompted the writ of execution, had been suspended by the appeal which the applicant had filed.

Section 63 of the Magistrate Court Act provides as follows:

“The execution of any sentence of imprisonment, fine, or community service shall not be suspended by -

(a)…,.

(b) The noting of an appeal referred to in section sixty unless -

(1) In the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of section 163 of the Criminal Procedure and Evidence Act [Chapter 9:07]; or

(2) In the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”

What this means is that the payment of the fine is not suspended by the appeal.

The Magistrate Court Act does not, however, mention whether or not an order of compensation is suspended by an appeal.

In terms of section 370 of the Criminal Procedure and Evidence Act “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”

This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.

If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party pre-supposes that compensation would have been paid soon after the sentence is passed.

Rules of Construction or Interpretation re: Approach, Inconsistencies Between Statutes & Ambiguous Provisions


This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act....,.

It was also submitted, on behalf of the applicant, that, the issuance of the writ of execution by the Clerk of Court was improper as it was issued at a time when an appeal had been filed. The subsequent attachment by the Messenger of Court was equally defective.

It was further argued, that, the order of compensation, which prompted the writ of execution, had been suspended by the appeal which the applicant had filed.

Section 63 of the Magistrate Court Act provides as follows:

“The execution of any sentence of imprisonment, fine, or community service shall not be suspended by -

(a)…,.

(b) The noting of an appeal referred to in section sixty unless -

(1) In the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of section 163 of the Criminal Procedure and Evidence Act [Chapter 9:07]; or

(2) In the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”

What this means is that the payment of the fine is not suspended by the appeal.

The Magistrate Court Act does not, however, mention whether or not an order of compensation is suspended by an appeal.

In terms of section 370 of the Criminal Procedure and Evidence Act “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”

This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.

If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party pre-supposes that compensation would have been paid soon after the sentence is passed....,.

It is also my considered view, that, the Regional Court had the jurisdiction to order compensation as it did for section 367 of the Criminal Procedure and Evidence Act provides that:-

“Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court, including the court of a Regional magistrate, may:

(a) Award compensation in terms of section three hundred and sixty two, three hundred and sixty three, or three hundred and sixty four in any amount; or

(b) Make an order in terms of section three hundred and sixty five for restitution of property, whatever the value of the property concerned.”

Jurisdiction re: Approach, Assumption of Jurisdiction, Functus Officio and Judicial Deference


This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance....,.

It is also my considered view, that, the Regional Court had the jurisdiction to order compensation as it did for section 367 of the Criminal Procedure and Evidence Act provides that:-

“Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court, including the court of a Regional magistrate, may:

(a) Award compensation in terms of section three hundred and sixty two, three hundred and sixty three, or three hundred and sixty four in any amount; or

(b) Make an order in terms of section three hundred and sixty five for restitution of property, whatever the value of the property concerned.”

Sentencing re: Approach iro Corporate Entities, Institutions, Artificial or Juristic Persons


This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act.

It was also submitted, on behalf of the applicant, that, the trial magistrate, in ordering restitution in the sum of USD$250,000 applied a parallel market exchange rate to the sum of ZWD16.1 trillion, which was unlawful and was not supported by evidence led at the trial and was contrary to the Reserve Bank of Zimbabwe letter designating an exchange rate of ZWD3000 to USD1 as being the exchange rate.

The correct version of facts on which the applicant was charged and convicted is that on 6 March 2008, and in Harare, R.T.O. Engineering (Pvt) Limited supplied the applicant Treasury, and not an individual employee, with Z$16.1 trillion which was to be transferred into some beneficiaries' accounts for the purposes of securing free funds, which funds were intended to buy some mechanized farm equipment. The applicant, thereafter, unlawfully misrepresented to RTO Engineering that it had transferred the money into the beneficiaries' accounts by originating 'swift transfers', and, by means of that misrepresentation caused R.T.O Engineering to believe that the transactions had been effected when in fact only a portion had been so effected causing an actual prejudice of USD$250,000.

The court was advised, that, the court a quo had accepted the fact that upon being paid by R.T.O. Engineering (Pvt), the applicant generated swift confirmations, which are electronic printouts that can only be generated by an authorised dealer after logging onto the international swift platform. 'Swift' is short for 'Society for the World Wide Funds Transfer'.

Upon being paid, the applicant generated the swift transfer to Tatumarchesan in Brazil for an amount of $100,000 only.

The amount paid by RTO Engineering had been meant to raise $351,000 of which $100,000 was sent to Brazil. $251,000 disappeared, and, it is that amount for which the court ordered compensation in the sum of USD$250,000.

It is therefore not correct for the applicant to argue, that, the court a quo failed to use the exchange rate applicable at the time. The court was correct in ordering compensation in the amount actually suffered by R.T.O Engineering.

It was also submitted, on behalf of the applicant, that, the issuance of the writ of execution by the Clerk of Court was improper as it was issued at a time when an appeal had been filed. The subsequent attachment by the Messenger of Court was equally defective.

It was further argued, that, the order of compensation, which prompted the writ of execution, had been suspended by the appeal which the applicant had filed.

Section 63 of the Magistrate Court Act provides as follows:

“The execution of any sentence of imprisonment, fine, or community service shall not be suspended by -

(a)…,.

(b) The noting of an appeal referred to in section sixty unless -

(1) In the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of section 163 of the Criminal Procedure and Evidence Act [Chapter 9:07]; or

(2) In the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”

What this means is that the payment of the fine is not suspended by the appeal.

The Magistrate Court Act does not, however, mention whether or not an order of compensation is suspended by an appeal.

In terms of section 370 of the Criminal Procedure and Evidence Act “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”

This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.

If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party pre-supposes that compensation would have been paid soon after the sentence is passed.

It is also my considered view, that, the Regional Court had the jurisdiction to order compensation as it did for section 367 of the Criminal Procedure and Evidence Act provides that:-

“Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court, including the court of a Regional magistrate, may:

(a) Award compensation in terms of section three hundred and sixty two, three hundred and sixty three, or three hundred and sixty four in any amount; or

(b) Make an order in terms of section three hundred and sixty five for restitution of property, whatever the value of the property concerned.”

I am of the view, that, the applicant has no chances of success on review for the reason that both the Clerk of Court and the Messenger of Court's actions were within the confines of the law.

They both did not exercise any judicial functions which are reviewable: see section 372 of the Criminal Procedure and Evidence Act.

Further, there was no record of proceedings of the court a quo furnished in this court, which the applicant seeks to be reviewed. No recognized basis was laid before me for that review.

It is for the above reasons that the applicant cannot be assisted with a relief such as a stay of execution because it is founded on a hopeless application for review.

Accordingly, the application is dismissed with costs.

Sentencing re: Approach iro Compensatory Orders or Restitution


This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act.

It was also submitted, on behalf of the applicant, that, the trial magistrate, in ordering restitution in the sum of USD$250,000 applied a parallel market exchange rate to the sum of ZWD16.1 trillion, which was unlawful and was not supported by evidence led at the trial and was contrary to the Reserve Bank of Zimbabwe letter designating an exchange rate of ZWD3000 to USD1 as being the exchange rate.

The correct version of facts on which the applicant was charged and convicted is that on 6 March 2008, and in Harare, R.T.O. Engineering (Pvt) Limited supplied the applicant Treasury, and not an individual employee, with Z$16.1 trillion which was to be transferred into some beneficiaries' accounts for the purposes of securing free funds, which funds were intended to buy some mechanized farm equipment. The applicant, thereafter, unlawfully misrepresented to RTO Engineering that it had transferred the money into the beneficiaries' accounts by originating 'swift transfers', and, by means of that misrepresentation caused R.T.O Engineering to believe that the transactions had been effected when in fact only a portion had been so effected causing an actual prejudice of USD$250,000.

The court was advised, that, the court a quo had accepted the fact that upon being paid by R.T.O. Engineering (Pvt), the applicant generated swift confirmations, which are electronic printouts that can only be generated by an authorised dealer after logging onto the international swift platform. 'Swift' is short for 'Society for the World Wide Funds Transfer'.

Upon being paid, the applicant generated the swift transfer to Tatumarchesan in Brazil for an amount of $100,000 only.

The amount paid by RTO Engineering had been meant to raise $351,000 of which $100,000 was sent to Brazil. $251,000 disappeared, and, it is that amount for which the court ordered compensation in the sum of USD$250,000.

It is therefore not correct for the applicant to argue, that, the court a quo failed to use the exchange rate applicable at the time. The court was correct in ordering compensation in the amount actually suffered by R.T.O Engineering.

It was also submitted, on behalf of the applicant, that, the issuance of the writ of execution by the Clerk of Court was improper as it was issued at a time when an appeal had been filed. The subsequent attachment by the Messenger of Court was equally defective.

It was further argued, that, the order of compensation, which prompted the writ of execution, had been suspended by the appeal which the applicant had filed.

Section 63 of the Magistrate Court Act provides as follows:

“The execution of any sentence of imprisonment, fine, or community service shall not be suspended by -

(a)…,.

(b) The noting of an appeal referred to in section sixty unless -

(1) In the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of section 163 of the Criminal Procedure and Evidence Act [Chapter 9:07]; or

(2) In the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”

What this means is that the payment of the fine is not suspended by the appeal.

The Magistrate Court Act does not, however, mention whether or not an order of compensation is suspended by an appeal.

In terms of section 370 of the Criminal Procedure and Evidence Act “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”

This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.

If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party pre-supposes that compensation would have been paid soon after the sentence is passed.

It is also my considered view, that, the Regional Court had the jurisdiction to order compensation as it did for section 367 of the Criminal Procedure and Evidence Act provides that:-

“Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court, including the court of a Regional magistrate, may:

(a) Award compensation in terms of section three hundred and sixty two, three hundred and sixty three, or three hundred and sixty four in any amount; or

(b) Make an order in terms of section three hundred and sixty five for restitution of property, whatever the value of the property concerned.”

I am of the view, that, the applicant has no chances of success on review for the reason that both the Clerk of Court and the Messenger of Court's actions were within the confines of the law.

They both did not exercise any judicial functions which are reviewable: see section 372 of the Criminal Procedure and Evidence Act.

Further, there was no record of proceedings of the court a quo furnished in this court, which the applicant seeks to be reviewed. No recognized basis was laid before me for that review.

It is for the above reasons that the applicant cannot be assisted with a relief such as a stay of execution because it is founded on a hopeless application for review.

Accordingly, the application is dismissed with costs.

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings


This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act.

It was also submitted, on behalf of the applicant, that, the trial magistrate, in ordering restitution in the sum of USD$250,000 applied a parallel market exchange rate to the sum of ZWD16.1 trillion, which was unlawful and was not supported by evidence led at the trial and was contrary to the Reserve Bank of Zimbabwe letter designating an exchange rate of ZWD3000 to USD1 as being the exchange rate.

The correct version of facts on which the applicant was charged and convicted is that on 6 March 2008, and in Harare, R.T.O. Engineering (Pvt) Limited supplied the applicant Treasury, and not an individual employee, with Z$16.1 trillion which was to be transferred into some beneficiaries' accounts for the purposes of securing free funds, which funds were intended to buy some mechanized farm equipment. The applicant, thereafter, unlawfully misrepresented to RTO Engineering that it had transferred the money into the beneficiaries' accounts by originating 'swift transfers', and, by means of that misrepresentation caused R.T.O Engineering to believe that the transactions had been effected when in fact only a portion had been so effected causing an actual prejudice of USD$250,000.

The court was advised, that, the court a quo had accepted the fact that upon being paid by R.T.O. Engineering (Pvt), the applicant generated swift confirmations, which are electronic printouts that can only be generated by an authorised dealer after logging onto the international swift platform. 'Swift' is short for 'Society for the World Wide Funds Transfer'.

Upon being paid, the applicant generated the swift transfer to Tatumarchesan in Brazil for an amount of $100,000 only.

The amount paid by RTO Engineering had been meant to raise $351,000 of which $100,000 was sent to Brazil. $251,000 disappeared, and, it is that amount for which the court ordered compensation in the sum of USD$250,000.

It is therefore not correct for the applicant to argue, that, the court a quo failed to use the exchange rate applicable at the time. The court was correct in ordering compensation in the amount actually suffered by R.T.O Engineering.

It was also submitted, on behalf of the applicant, that, the issuance of the writ of execution by the Clerk of Court was improper as it was issued at a time when an appeal had been filed. The subsequent attachment by the Messenger of Court was equally defective.

It was further argued, that, the order of compensation, which prompted the writ of execution, had been suspended by the appeal which the applicant had filed.

Section 63 of the Magistrate Court Act provides as follows:

“The execution of any sentence of imprisonment, fine, or community service shall not be suspended by -

(a)…,.

(b) The noting of an appeal referred to in section sixty unless -

(1) In the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of section 163 of the Criminal Procedure and Evidence Act [Chapter 9:07]; or

(2) In the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”

What this means is that the payment of the fine is not suspended by the appeal.

The Magistrate Court Act does not, however, mention whether or not an order of compensation is suspended by an appeal.

In terms of section 370 of the Criminal Procedure and Evidence Act “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”

This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.

If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party pre-supposes that compensation would have been paid soon after the sentence is passed.

It is also my considered view, that, the Regional Court had the jurisdiction to order compensation as it did for section 367 of the Criminal Procedure and Evidence Act provides that:-

“Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court, including the court of a Regional magistrate, may:

(a) Award compensation in terms of section three hundred and sixty two, three hundred and sixty three, or three hundred and sixty four in any amount; or

(b) Make an order in terms of section three hundred and sixty five for restitution of property, whatever the value of the property concerned.”

I am of the view, that, the applicant has no chances of success on review for the reason that both the Clerk of Court and the Messenger of Court's actions were within the confines of the law.

They both did not exercise any judicial functions which are reviewable: see section 372 of the Criminal Procedure and Evidence Act.

Further, there was no record of proceedings of the court a quo furnished in this court, which the applicant seeks to be reviewed. No recognized basis was laid before me for that review.

It is for the above reasons that the applicant cannot be assisted with a relief such as a stay of execution because it is founded on a hopeless application for review.

Accordingly, the application is dismissed with costs.

Urgent Chamber Application

KARWI J: This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows.

On 14 December 2009, the regional court sitting at Harare convicted the Applicant Bank of contravening s136 of the Criminal Law [Codification and Reform Act] [Cap 9:23] and sentenced applicant to pay a fine of $500.00 and also ordered applicant to compensate first respondent the sum of $250,000.00.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of applicant says that he was shocked to hear on 17 December 2009, that on the same day, the second respondent, armed with a Writ of Execution together with a Bond of Indemnity had been at applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred that the issuing of the Writ was improper and unlawful, as the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the Writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented that in terms of s372 of the Criminal Procedure and Evidence Act, [Cap 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the Writ of execution on applicant, its legal practitioners immediately filed an ex parte application on 18 December 2009 in the magistrate's court for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, applicant filed an application for review if the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting that in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the messenger and the clerk of court, applicant concedes that the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in s63 of the Magistrates Court Act [Cap 7:10].

However, applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Act and therefore in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in s63 of the Magistrate Court Act.

It was also submitted on behalf of applicant that the trial magistrate in ordering restitution in the sum of USD$25000.00 applied a parallel market exchange rate to the sum of ZWD16.1 trillion, which was unlawful and was not supported by evidence led at the trial and was contrary to the Reserve Bank of Zimbabwe letter designating an exchange rate of ZWD30 00.00 to USD1.00 as being the exchange rate.

The correct version of facts on which applicant were charged and convicted is that on 6 March 2008, and in Harare, R.T.O. Engineering (Pvt) Limited supplied applicant Treasury and not an individual employee with Z$16.1 trillion which was to be transferred into some beneficiaries' accounts for the purposes of securing free funds, which funds were intended to buy some mechanized farm equipment. Applicant thereafter unlawfully misrepresented to R.T.O Engineering that it had transferred the money into the beneficiaries' accounts by originating 'swift transfers' and by means of that misrepresentation caused R.T.O Engineering to believe that the transactions had been effected when in fact only a portion had been so effected causing an actual prejudice of USD$25000.00.

The court was advised that the court a quo had accepted the fact that upon being paid by R.T.O. Engineering (Pvt) applicant generated swift confirmations, which are electronic printouts that can only be generated by an authorised dealer after logging onto the international swift platform. 'Swift' is short for 'Society for the World Wide Funds Transfer'.

Upon being paid, applicant generated the swift transfer to Tatumarchesan in Brazil for an amount of $100,000.00 only.

The amount paid by R.T.O Engineering had been meant to raise $351,000.00 of which $100,000.00 was sent to Brazil. $25100 disappeared and it is that amount for which the court ordered compensation in the sum of USD$25000.00.

It is therefore not correct for applicant to argue that the court a quo failed to use the exchange rate applicable at the time. The court was correct in ordering compensation in the amount actually suffered by R.T.O Engineering.

It was also submitted on behalf of applicant that the issuance of the Writ of execution by the clerk of court was improper as it was issued at a time when an appeal had been filed. The subsequent attachment by the messenger of court was equally defective.

It was further argued that the order of compensation, which prompted the Writ of execution had been suspended by the appeal which applicant had filed.

S63 of the Magistrate Court Act provides as follows:

“The execution of any sentence of imprisonment, fine or community service shall not be suspended by -

(a)…………………………………………………………

(b) The noting of an appeal referred to in section sixty unless -

(1) In the case of imprisonment or fine bail is granted by a judge or magistrate in terms of s163 of the Criminal Procedure and Evidence Act [Cap 9:07]; or

(2) in the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”

What this means is that the payment of the fine is not suspended by the appeal.

The Magistrate Court Act does not however mention whether or not an order of compensation is suspended by an appeal.

In terms of s370 of the Criminal Procedure and Evidence Act, “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”

This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.

If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party presupposes that compensation would have been paid soon after the sentence is passed.

It is also my considered view that the regional court had the jurisdiction to order compensation as it did for s367 of the Criminal Procedure and Evidence Act provides that:-

“Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court, including the court of a regional magistrate, may:

(a) award compensation in terms of section three hundred and sixty two, three hundred and sixty three or three hundred and sixty four in any amount; or

(b) make an order in terms of section three hundred and sixty five for restitution of property, whatever the value of the property concerned.”

I am of the view that applicant has no chances of success on review for the reason that both the clerk of court and the messenger of court's actions were within the confines of the law.

They both did not exercise any judicial functions which are reviewable. See s372 of the Criminal Procedure and Evidence Act.

Further, there was no record of proceedings of the court a quo furnished in this court, which applicant seeks to be reviewed. No recognized basis was laid before me for that review.

It is for the above reasons that the applicant cannot be assisted with a relief such as a stay of execution because it is founded on a hopeless application for review.

Accordingly the application is dismissed with costs.






Kantor & Immerman, applicant's legal practitioners

Mutamangira & Associates, 1st respondent's legal practitioners

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