Fraud and Criminal Promise

HH40-12 : REGGIES NAZARE vs THE STATE
Ruled By: BHUNU J and DUBE J

The appellant appeared before a Bindura magistrate facing a charge of fraud.,. The appellant was convicted of the offence and sentenced to six years imprisonment of which two years was suspended on the usual conditions of good conduct. Aggrieved by the decision, the appellant appealed to this court. The State conceded that the conviction was improper.,. ...

HB93-09 : ADMIRE KAMBA vs THE STATE
Ruled By: CHEDA J

The allegations against the applicant, which are common cause, are briefly that the accused was employed by Volcano Investments, at Beitbridge, as a clearing agent. During his employment, he committed fraud. It is alleged that on the 3rd day of July 2009, at Beitbridge Border Post, the accused, together with two of his co-accused persons, ...

SC44-14 : FUNGAYI NYANGARI and HEATHER SHAMU vs THE STATE
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

After hearing counsel in this matter, we dismissed the appeal against both conviction and sentence. We indicated that our reasons would follow. These are they. This is an appeal against the decision of the High Court, dated 13 September 2011, confirming the conviction of and sentence imposed upon the appellant by the Magistrates' ...

HB67-10 : THE STATE vs WILSON BANDA
Ruled By: MATHONSI J and CHEDA J

The accused was convicted of fraud (5 counts) in contravention of section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,. The accused had pleaded guilty to all five (5) counts. The allegations against the accused are that on the 16th May 2010, at Full Gospel Church of God in Mpopoma, Bulawayo, he ...

HB69-10 : THE STATE vs DOUGLAS ZULU and BISMARK MAPOSA
Ruled By: CHEDA J

This is a review matter. The two accused persons were jointly charged with two counts of fraud. The allegations are that on the 22nd November 2009 and 18th January 2010 accused 2, acting with the concurrence of accused 1, completed a withdrawal slip purporting that it had been authored by the complainant, Robinson and Company ...

HB93-10 : REGINA MLISA vs THE STATE
Ruled By: CHEDA J and NDOU J

The salient facts of the case are the following.It is common cause, in count 1, that the appellant approached the complainant who runs CP Cunningham, a commodity broking company, for a loan of Z$950 million on 30 November 2005. The appellant was given Z$350 million against which she issued the complainant a postdated cheque of ...

The salient facts of the case are the following.

It is common cause, in count 1, that the appellant approached the complainant who runs CP Cunningham, a commodity broking company, for a loan of Z$950 million on 30 November 2005. The appellant was given Z$350 million against which she issued the complainant a postdated cheque of the same amount which she averred will be met on 5 December 2005. The cheque was dishonoured on presentation.

In count 2, it is alleged that the appellant approached the complainant once more for a loan of Z$270 million. She said the money was going to be paid by her husband the following day. The complainant's husband refused to pay as he stated that he had not given the appellant the authority or mandate to borrow the amount as she had told the complainant.

The appellant's defence is that she paid back the monies advanced as loans. She stated that the money now demanded by the complainant is interest on the amounts advanced to her. However, no record of such payment was availed during the trial in the court a quo.

Therefore, the question for determination in the trial court was whether in the circumstances the offences of fraud had been committed and whether in the final analysis the State had discharged the onus on it. In other words, whether the State had proved beyond reasonable doubt that when the appellant made the representations she was lying and she impliedly had no intention to keep the promises.

The charge in count 1 has to do with a post-dated and dishonoured cheque. It was held in S v Tinago SC197-88 that in such cases the state of mind of the accused at the time of the issuing is all important. Proof of that wrongful state of mind is not easy. It is trite that the onus is on the State to show that at the time the appellant made the representations, she knew she was lying, that she never, at the time when she made them, had an expectancy of being able to honour the cheque – S v Copley 1973 (4) SA 111 (RAD). Where the accused had no honest belief that the cheque would be met on presentation, he is guilty of fraud – S v Jakarasi 1983 (1) ZLR 218 (S); S v Van Neikerk 1981 (3) SA 787 (T); R v Deetlefs 1953 (1) SA 418 (AD) and R v Blackmore 1959 (4) SA 486 (FC). An accused cannot be convicted if the evidence reveals that at the time the cheque was drawn, he or she honestly believed that it would be met on the post date.

In casu, the appellant took out a loan. She made out a post-dated cheque. The complainant banked the cheque on the post-date and it was dishonoured. There was no reason for the complainant to bank the cheque earlier than the agreed date if she had been told that the appellant had no funds. After the cheque had been dishonoured, the appellant approached the complainant to state that she had a problem and asked for time to pay. As alluded to above, the question is whether she had the potential to pay when she made out the cheque. The court a quo arrived at a decision that the appellant never had any expectancy to meet the post-dated cheque and did not intend to do so.

I agree with the said finding of the trial court.

Criminal law is not there to punish people who break promises – but only those who make promises at a time when they have no intention of performing – South African Criminal Law and Procedure by PMA HUNT (2^nd Edition by JRL Milton)…,.

In respect of count 2, she made a representation to the complainant that she would repay the following day with the aid of her husband. When her husband was contacted the following day, he refused to pay as he had not given the appellant the mandate to raise the loan in the first place.

It is trite that fraud charges are often based on what the accused has represented or promised ostensibly in regard to some future time. The true inquiry in such cases is whether the accused has honesty impliedly expressed his present state of mind in regard to the matter represented, or in regard to the promise – South African Criminal Law and Procedure by PMA HUNT (2^nd Edition by JRL Milton)…,.; S v Harper 1981 (2) SA 638 (DC)….,.; S v Copley 1973 (4) SA 111 (RAD)….,.; S v Hubbard A40-75 and S v Black 1975 (1) RLR 355 (G).

In casu, the appellant obtained the loan by falsely representing that her husband had agreed to pay the complainant the following day when he returned from his travel. She had not spoken to her husband about the loan before she approached the complainant stating that he had made such an undertaking. The appellant's state of mind was dishonest when she made the promise. She knew she had no money to repay the following day. She knew that her husband was not even aware of the presentation she was making to the complainant. When the complainant approached her husband he revealed that the appellant had lied about his alleged involvement. She lied in order to defraud the complainant.

There is no merit in the appeal against conviction in both counts.

HH108-13 : KETIAS ZINGUNZI vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

In heads of argument filed on behalf of the respondent it is submitted that it is an essential element of the offence of fraud that actual or potential prejudice on the part of some person ensues as a result of the misrepresentation and that, in casu, it remains unclear how the complainant company was prejudiced. ...

HB53-13 : THE STATE vs RODRICK DUBE
Ruled By: MAKONESE J AND CHEDA AJ

The appellant, a school headmaster, was arraigned before a magistrate sitting at Lupane on the 2nd November 2010 on ten counts of fraud in contravention of section 136 of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. The brief allegations are that during the period between March 2009 and October 2012 he misrepresented to the Ministry ...

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

HB120-14 : SINANZWEYINKOSI NDLOVU vs THE STATE
Ruled By: KAMOCHA J and MAKONESE J

The appellant, who was jointly charged with Musa Masuku and Ndabezinhle Gumbo, was convicted by a magistrate sitting at Western Commonage Magistrates Court, Bulawayo on two counts of fraud for contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that is to say fraud….,. The appellant, who was the first accused in ...

SC33-16 : ELPHAS NCUBE vs THE STATE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

On 14 October 2009, the appellant was found guilty of one count of fraud by the Magistrates Court. The matter was referred to the Attorney-General on the question of sentence. On 25 January 2010 the High Court confirmed his conviction …,.He has already served the sentence in full. The appellant now appeals ...

HH24-15 : WILFRED NYAMBO and AUXILLIA NYAMBO vs THE STATE
Ruled By: MANGOTA J and TAGU J

The two appellants were convicted after a contested trial, of eight (8) counts of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were each sentenced to 5 years imprisonment, of which 1 year imprisonment was suspended for 5 years on condition of good behaviour, and a ...

HB85-16 : THE STATE vs MVURACHENA TADZEMBWA
Ruled By: MATHONSI J and MAKONESE J

The accused person appeared before a Provincial Magistrate at Beitbridge charged with seventeen counts of fraud in contravention of section 136 of the Criminal Law Code [Chapter 9:23]. He pleaded guilty to all the charges but had his guilty plea in respect of Count 15 altered to not guilty after he had ...

HH84-15 : EDMORE CHAGONDA vs THE STATE
Ruled By: HUNGWE J and BERE J

The appellant was jointly charged with another with fraud as defined in section 136 of the Criminal Law (Codification Reform) Act [Chapter 9:23]. They both pleaded not guilty, and, after a trial, only the appellant was convicted….,. Dissatisfied by both conviction and sentence, he appeals against both. Three grounds of appeal were advanced on the appellant's behalf. ...

The appellant was jointly charged with another with fraud as defined in section 136 of the Criminal Law (Codification & Reform) Act [Chapter 9:23]. They both pleaded not guilty, and, after a trial, only the appellant was convicted….,.

Dissatisfied by both conviction and sentence, he appeals against both.

Three grounds of appeal were advanced on the appellant's behalf. The first ground is that the court erred in convicting the appellant since the State had not led evidence in rebuttal of the appellant's claim that his co-accused had signed the Agreement of Sale. The second ground was that the court erred in dismissing the appellant's claim that he only acted as a messenger in sending the documents to his co-accused. The third ground recited that the court erred in convicting the appellant when the appellant's co-accused had confirmed that one George Bateni had been responsible for forging his signature….,.

The court a quo found, as fact, that the appellant represented to the complainant that there was a Stand up for sale. The complainant had paid the first instalment personally to the appellant who indicated that he would forward it to one Bateni. The said Bateni was, at the time, in South Africa. The court also found, as fact, that the co-accused had not given any mandate to the appellant to sell the Stand. It is not in dispute that upon initial inquiry the appellant had indicated that there was no Stand available for sale but later telephoned the complainant indicating that in fact there was one such Stand available for sale. He received the second instalment, paid by the second State witness, thereby making him the sole recipient of the full sum of US$3,000= paid in the transaction; which transaction did not yield the results it was supposed to yield.

Of course, the appellant gave his version of the events.

The court was not impressed by that version on a balance of probability. The reason for which the court did not find for the appellant are well articulated in the judgment. First, the court found that the appellant was not employed by his co-accused, one Douglas Nyaunde, an estate agent. His involvement in the transaction was therefore designed to prejudice the complainant right from the outset. There was no doubt in his mind, when he called the complainant offering the Stand for sale that he knew that there was no such Stand for sale in the first place. He knew that the complainant was going to lose his money by the prank he had set into motion with the sole purpose to deceive the complainant. He intended the deception to work in a way which resulted in the complainant suffering actual prejudice. It may well be that there were other people involved in the scam but the evidence of his role points decidedly in favour of his conviction for the crime charged.

The duty of the State in any prosecution is to prove beyond a reasonable doubt that an accused had committed the crime charged. I am satisfied that the State, in the present case, discharged this duty on the evidence.

The appellant's conviction is grounded and founded on his own action in the fraud. The essential elements of the crime were proved beyond a reasonable doubt. As such, his conviction remains unassailable.

The appeal against conviction is therefore dismissed.

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE
Ruled By: HUNGWE J and BERE J

The appellant was charged with the crime of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] together with one Stanley Musendo (“Musendo”).

During the trial, the appellant was the second accused. Despite their pleas of not guilty, they were both convicted as charged and each of them was sentenced to 10 years imprisonment of which 2 years imprisonment was suspended for five years on condition of good behaviour. A further 4 years imprisonment was suspended on condition that the accused make restitution on or before 30 June 2014 leaving an effective 4 years imprisonment if all conditions are met.

The brief facts upon which the conviction was based can be summarised as follows:

The appellant, a legal practitioner, was engaged by the complainant, Khaled Otman (Otman”), a Libyan national, in his capacity as an attorney. The initial brief was to cause an eviction of certain tenants who had breached a residential lease agreement. An attorney-client relationship blossomed. With time, the client's portfolio included both movable and immovable assets. He was managing the business interests of a company called Adawillia Investments (Pvt) Ltd, a commercial arm of the Libyan Government.

Khaled Otman fell ill and had to hastily leave for Libya for treatment. He believed he would be away for no more than two or so weeks. He asked his attorney, the appellant, to recommend someone to superintend over the company business whilst he was away. That person would get 10% as commission on rentals received for executing the mandate. He would manage the haulage transport business, and so on.

The appellant recommended one Stanley Musendo, who was later to become the first accused. An oral briefing in the attorney's offices took place and an oral agreement was concluded. The company's Operations Manager, one Kenneth Madanhi (“Madanhi”) was asked by the complainant, Khaled Otman, as a director of Adawillia Investments (Pvt) Ltd, to take Musendo to their company premises in Msasa, Harare where the transport business was based on a fairly large industrial Stand.

Musendo was allocated one of the residential units in the 10 unit block of flats at 56 Natal Road, Avondale so that he is in close proximity with the tenants from where he would be collecting rentals. Musendo decided to lease the haulage trucks from the company himself at a rate of US$5,000 per month. He paid for only one month, around November 2008, before Khaled Otman left. He left in November 2008.

Khaled Otman remained indisposed for a longer period than he had anticipated. The company's directors, in Tripoli, decided to delegate someone else from the Libyan Embassy to take over the supervisory duties previously held by Khaled Otman, one Ghunim.

When Ghunim approached the appellant to collect the rentals expected from Musendo, he was toasted from pillar to post before he finally managed to contact Musendo. He was paid only US$260. When he protested, Musendo, through his company, P.M.C (Pvt) Ltd, interdicted him from approaching or entering the Libyan companies' premises. He then learnt of the attempt by the appellant and Musendo to take over Adawillia Investments (Pvt) Ltd, its assets, both movable and immovable. He also learnt that the trucking business assets had been sold; that the immovable property at Msasa had been subdivided and one of the three Stands sold; that no money had been collected by the appellant from Musendo.

When eventually Khaled Otman arrived in Zimbabwe, his investigations led him to conclude that the appellant had connived with the said Musendo in all this and had caused the sale of immovable property and the attempted takeover of the company by Musendo. They were jointly charged with fraud for which they were both convicted.

They both appeal against conviction and sentence.

Pending this appeal, Musendo skipped bail and has not pressed on with the appeal. This appeal is in respect of only Tapiwa Givemore Kasuso.

Mr Rubaya, of Nyamushaya Kasuso and Rubaya law firm filed a notice of appeal on the appellant's behalf. It consists of thirteen grounds of appeal against conviction and six grounds of appeal against sentence.

The thirteen grounds of appeal are a rambling critique of the findings of fact by the trial court.

Consequently, the heads of argument prepared by Mr Mpofu were afflicted by the same malady. The heads of argument did not follow the grounds of appeal as proposed in the notice and grounds of appeal filed in support of the appeal against conviction. The heads consisted of the actual argument and did not comply with the High Court Rules, 1971 (see order Rule 238).

The essence of Mr Mpofu's argument is captured in his opening paragraph where he states:

“1.1 There is no doubt that justice miscarried in this matter. The charge brought against the second appellant ought not to have survived the application for discharge appearing at pages 447-469 of the record and leave is sought that reference be had in this appeal to three submissions particularly relating to the manner in which the evidence led for the State is analysed.

Second appellant clearly committed no offence and the charge that he faced was clearly not established.”

Mr Mpofu urged this court to find that the appellant faced one set allegation which were not proved but ended up being convicted on an unclear basis. He states that the story relied upon by the State was false and ought to have been rejected as such. He based his submission on the claim that the court a quo found, as fact, that on 17 November 2008, in Khaled Otman's presence, an agreement was drafted by the appellant.

Having found this as common cause, Mr Mpofu argues that it defies logic that the learned magistrate proceeded to convict the appellant on the basis of a charge which says he crafted a fictitious document after Khaled Otman had left the country. He relies on the evidence of consummation of the agreement given by Kenneth Madanhi as well as what Khaled Otman told Madanhi concerning the agreement.

Because the court a quo accepted that the appellant handed a copy of the agreement to Khaled Otman before he signed it and that Otman took it away, there was no obligation on the appellant to ensure that Khaled Otman read it before he signed since Otman had ample opportunity to read it before signing it.

The reasoning adopted by the court, so Mr Mpofu argued, is that the court disagreed with the manner in which the appellant conducted his business. That did not prove that the appellant was guilty of fraud.

The above argument, by Mr Mpofu, speaks to the assessment of the factual findings by the court a quo.

An Appellate Court will not lightly interfere with the findings of fact by a trial court which are based on the credibility of witnesses. The reason for this is that the trial court is better placed to assess the witnesses from its observation as it enjoys the advantage of seeing and hearing them first hand.

In S v Isolano 1985 (1) ZLR 62 (SC) DUMBUTSHENA CJ expressed himself on this principle this way;

“There are many authorities of this court, and persuasive authorities from other jurisdictions, on the proper approach of an Appellate Court to the consideration of a decision based on fact. I find the remarks of LORD McMILLAN, in Watt (or Thomas) v Thomas [1947] ALL ER 582 @ p590 B-D very appropriate in this case. He said;

'The Appellate Court had before it only the printed record of evidence. Were that the whole evidence, it might be said that the appellate judges were entitled and qualified to reach their conclusion upon the case; but, it is only part of the evidence. What is lacking is evidence of demeanour of the witness, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial.

This assistance the trial judge possesses of in reaching his conclusion, but it is not available to the Appellate Court.

So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the Appellate Court, becomes of paramount importance and ought not to be disturbed.

This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge, on the facts, may be demonstrated in the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone completely wrong.'”

See also Hughs v Graniteside Holdings (Pvt) Ltd SC13-84 (unreported); S v Mlambo 1994 (2) ZLR 410 (S); Murambiwa v State HH42-15.

That approach, of an Appellate Court when invited to interfere with the factual findings of a trial judge, was restated, not for the first time, by the English Supreme Court in McGraddie v McGraddie [2013] UK SC 58; [2013] 1 WLR 2477 and accurately summarized in the headnote:

“It was a long settled principle, stated and related in domestic and under common law jurisprudence, that an Appellate Court should not interfere with the trial judge's conclusions on primary facts unless satisfied that he was plainly wrong.”

LEMISON LJ returned to the topic in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26. In a vivid passage at paragraph [114] he said:

“The appellate courts have been repeatedly warned by recent cases, at the highest level, not to interfere with findings of fact by trial judges unless compelled to do so. This applied not only to findings of facts but also the evaluation of those facts and inferences to be drawn from them….,. The reasons for this approach are many. They include:-

(i) The expertise of the trial judge in determining what facts are relevant to the legal issues to be decided, and what true facts are if they are disputed;

(ii) The trial is not a dress rehearsal. It is the first and last show of the night;

(iii) Duplication of trial judge's role, on appeal, is a disproportionate use of limited resources of an Appellate Court, and will seldom lead to a different outcome in an individual case.

(iv) In making his decisions, the trial judge will have regard to the whole sea of evidence presented to him, whereas, an Appellate Court will only be…, hoping.

(v) The atmosphere of the courtroom, in any event, cannot be recreated by reference to documents (including transcripts of evidence).

(vi) Thus, even if it were permissible to duplicate the role of the trial judge, it cannot, in practice, be done.”

I am of the firm view that the court a quo was entitled to come to the findings of fact that it did, which include findings on credibility of the State witnesses. These findings and inferences, relating to the central issues in this appeal, present a complete block to its success.

Mr Mpofu complains that an agreement was reached on 17 November 2008 between Khaled Otman, Kenneth Madanhi, Musendo and the appellant and was reduced to writing, yet the appellant was convicted on the basis of the charge which says he crafted a fictitious document after Khaled Otman had left the country.

This assertion calls for closer scrutiny.

The agreement between Khaled Otman, Musendo, and the appellant was that Musendo was to superintend the complainant's business by way of collecting rentals. Musendo would also pay rent for the haulage trucks that he was hiring from the complainant's company, represented by Khaled Otman.

It was an oral agreement.

Kenneth Madanhi was present when this agreement was concluded. Madanhi was however, not part of the discussions leading to this oral agreement, the basis upon which he was instructed by his employer to proceed to Msasa and show Musendo the assets of the company and do an inventory of the same.

Kenneth Madanhi was later to be approached by Musendo with a request that he signs a document on behalf of Khaled Otman, who, by then, was out of the country. Madanhi declined this invitation.

The agreement found to have been concluded at Mantsebo & Associates was the gentlemen's agreement which the magistrate adverted to in the paragraph relied on by Mr Mpofu. In that same paragraph, clearly, in light of the evidence in the record, when the magistrate refers to the written agreement, she is referring to the one presented to Kenneth Madanhi after Khaled Otman had left the country. That this must be so clearly emerges from the magistrate's treatment of the evidence of the appellant which she rejects by pointing out that it is highly unlikely that having drafted the agreement, the appellant would not have supervised its signature by the complainant since the complainant was still in Zimbabwe. He had reposed his trust in him as his attorney. On this basis, she rejected the claim by the appellant that the complainant signed the “agreement”.

The analysis of the evidence, on whether what was agreed to at Mantsebo & Associates is what was eventually reduced to into exhibit 1, appears at p23 of the record. The court carefully considered the “agreement” and correctly observed that whist it is headed “lease agreement” it had provision of a take-over of 55% of shares in Adawillia Investments (Pvt) Ltd and that it did not mention the US$330,000 and ZW$168 billion claimed to have been paid for the shares. She clearly expresses doubt as to the true nature of the document that was produced as exhibit 1. She then comes to the only reasonable reference that the “agreement”, exhibit 1, did not correctly represent what was agreed to by the parties to the gentlemen's agreement.

She also finds that the document was never given to Khaled Otman at any stage but may have been shown to Kenneth Madanhi when he was invited to sign it on behalf of Otman.

She finds that both Khaled Otman and Kenneth Madanhi never signed it (record p 23).

She finds that what Khaled Otman had asked the appellant to be the person's mandate was nowhere in the document. She then concludes that the document was the misrepresentation in this case.

Mr Mpofu took issue with the competence of the allegation that there was a misrepresentation - an essential element of the offence of fraud.

In his view, the court made no finding in respect of this essential element. He argued that if the allegation is that the appellant crafted the document such that it did not say what the parties had agreed on, then the document did not misrepresent anything to Khaled Otman. Since he did not see it, he could not therefore have been misrepresented by it. If it misrepresented to a third party, then that party, not Khaled Otman, must be the complainant.

Additionally, Mr Mpofu argued that that party must have suffered actual or potential prejudice as a result of acting on the misrepresentation.

It needs not be repeated that there are six legal requirements that must be perfectly complied with before an accused can be convicted of a crime. These are:

(a) Legality;

(b) Conduct;

(c) Compliance with definitional elements;

(d) Unlawfulness;

(e) Capacity;

(f) Culpability;

See sections 12, 13, 14, 15, 16 and 17 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Act”].

At common law, fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial. Section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] states:

“136 FRAUD

Any person who makes a misrepresentation –

(a) Intending to deceive another person or realising that there is a real risk or probability of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his prejudice, or realizing that there is a real risk or probability that another person may act upon the misrepresentation to his or her prejudice; shall be guilty of a fraud if the misrepresentation causes actual prejudice or is potentially prejudicial to another person, and liable to:-

(i) A fine…,.

(ii) Imprisonment for a period not exceeding thirty five years or both.”

The first requirement is that there must be a misrepresentation. This is the conduct requirement of the crime. By misrepresentation is meant a deception by means of a falsehood. Put differently, the accused must represent to another that a fact or set of facts exists which in fact does not exist.

Although the misrepresentation will generally take the form of writing or speech, conduct other than writing or speech may sometimes be sufficient; such as a nod of the head to signify consent; S v Larking 1934 AD 91. The misrepresentation may either be express or implied, by commission or omission.

In most cases, misrepresentation is made by way of commission. Further, the misrepresentation must refer to an existing state of affairs or to some past event - but not to some future event; S v Feinbert 1956 (1) SA 734 (O)…,.

In certain situations, however, a person who promises to do something at some future stage implies, when making the promise, that she intends fulfilling it; if this is not in fact her intention she is guilty of a falsehood regarding an existing state of affairs in that she implies that she has a certain belief or intention which she in fact does not have; R v Persotam 1938 AD 92.

As for the second element of the crime, namely, the requirement that the misrepresentation must cause actual prejudice or be potentially prejudicial, the crime is committed only if the lie brings about some sort of harm to another. This is referred to as prejudice.

In many instances of fraud, the person to who the false representation is made is in fact prejudiced. Actual prejudice is, however, not required, mere potential prejudice being sufficient to warrant conviction. The prejudice need not sound in money only; or only patrimonial. Potential prejudice means that the misrepresentation, looked at objectively, involved some risk of prejudice, or that it was likely to prejudice.

“Likely to prejudice” does not mean that there should be a probability of prejudice, but only that there should be a possibility of prejudice; S v Hayne 1956 (3) SA 604 (A). What this means is that what is required is that prejudice can be, not will be, caused.

More importantly, the prejudice need not necessarily be suffered by the representee, i.e the person to who the misrepresentation is directed; prejudice to a third party, or even to the State or the community in general is sufficient; S v Myeza 1985 (4) SA 30 (T)…,.

It is not relevant that the victim was not misled by the misrepresentation because it is the representation's potential which is the crucial issue; R v Dyonta 1935 AD 52; S v Isaacs 1968 (2) SA 187 (D)…,.

As such, it follows that since potential prejudice is sufficient, it is unnecessary to require a causal connection between the misrepresentation and the prejudice. Even where there is no causal connection there may still be fraud provided one can say that the misrepresenting holds the potential for prejudice. After all, a successful misrepresentation is not a requirement for fraud.

Applying the above principles to the facts of the present matter, it will be clear that several instances of misrepresentation are apparent. As the court a quo found, the parties, i.e. the complainant, the appellant and Musendo, agreed that Musendo was to superintend the businesses and assets of Adawillia Investments (Pvt) Ltd for the short duration of the complaint's absence from Zimbabwe.

After Khaled Otman left, the appellant and Musendo crafted an “agreement” which did not correctly capture this agreement. It was clearly a document which was calculated to deceive whoever was expected to rely on it; its estate agents; the tenants; the purchasers of land; and so on.

The contention by Mr Mpofu was that since the complainant never saw this document the charge was fatally flawed and the appellant could not have been convicted on this charge without it being amended.

A reading of both the common law, in respect of the element of misrepresentation, as well as section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not support this contention.

I have demonstrated why common law principles do not support this intention. I proceed to examine section 136 of the Criminal Law (Codification and Reform) Act that speaks of “intention to deceive another person” and “intending to cause another person to act upon the misrepresentation to his or her prejudice or realizing that there was a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice.”

The wording is wide enough to include the common law position in which prejudice is not suffered only by the person to whom the misrepresentation is made with intent to deceive generally.

Thus, whilst it is true that Khaled Otman never acted upon the document produced after he left the country, he clearly went away under a false belief created by the appellant and Musendo that Musendo would act as his agent in supervision of the assets and business interests of Adawillia Investments (Pvt) Ltd for the duration of the period that the applicant would be away.

In truth and in fact, the appellant and Musendo designed a scheme whereby not only would Musendo be in charge of Adawillia Investments (Pvt) Ltd business assets but would also take the proceeds for his own use. He proceeded to sell the portion of the immovable asset which the appellant must have kept to excised from the main title deed. This is the inescapable inference from the evidence which shows that the appellant was a practicing attorney in the law firm that facilitated the sale of the immovable property.

The appellant's footprints, through his erstwhile partner, one Nyamushaya, are so vivid that the court a quo cannot be faulted for its finding that he indeed facilitated the sale of all the assets which were sold, both movable and immovable.

In any event, the State case is assisted by the provisions of section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides for the liability of co-perpetrators.

The facts established at trial inexorably implicate the appellant in the commission of the crime. The appellant identified and recommended Musendo to be the agent of the complainant. He drew up the document which Musendo used to facilitate the sale of the complainant's assets. When the matter was called for trial, he assisted in facilitating the absence of a witness who had information as to how his partner, Nyamushaya, facilitated the sale of the assets together with Musendo.

The circumstances from which the inference of guilt was drawn was cogently and firmly established. The circumstances of the case, taken cumulatively, do indeed form a claim so complete that there is no escape from the conclusion that, within human probability, the crime was committed by Musendo and the appellant and no-one else. See S v Fata 2013 (2) ZLR 635; S v Mtetwa 2014 (2) ZLR 533.

In the circumstances, I am unable to disturb the appellant's conviction for fraud by the court a quo….,.

In the result, the appeal against conviction…, is dismissed.

BERE J authorizes me to state that he agrees with this judgment.

SC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].

In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. HH229-19).

The effect of that judgment was to quash the criminal charges against the respondents in Case No. CRB P 9114-5/18, and, consequently, to order their acquittal on those charges.

The Background

The applicant herein is the Prosecutor-General. The first respondent is a company styled Intratrek Zimbabwe (Pvt) Ltd (Intratrek), while the second respondent, Wicknell Munodaani Chivayo (Chivayo), is that company's Managing Director.

The respondents were charged with two counts of fraud and two counts of contravening local exchange control requirements. All four charges emanate from an Engineering, Procurement, and Construction Contract (the Contract) entered into between Intratrek, represented therein by Wicknell Munodaani Chivayo (Chivayo), and the Zimbabwe Power Company (Pvt) Ltd (the ZPC).

The Contract, which was concluded on 23 October 2015, was for the construction of a 100 megawatt solar power generation plant in Gwanda (the Project).

The first charge alleges fraud pursuant to misrepresentation by the respondents through the submission of invoices designed to fund a feasibility study for the Project. It is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total of US$2,435,654 on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice in that amount.

The second charge also alleges fraud by misrepresentation through the presentation of invoices for pre-commencement works on the Project. Again, it is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) acted upon the misrepresentation and released funds to the respondents who converted those funds to their own use thereby causing actual prejudice in the sum of US$3,188,476=80.

The third and fourth charges pertain to alleged exchange control violations.

The third charge alleges that the respondents entered into an unlawful agreement with a company resident in the United States of America involving the payment of recurring fees amounting to US$849,479 without seeking prior approval from the Exchange Control Authority. The fourth charge alleges that the respondents were granted exchange control approval to load Wicknell Munodaani Chivayo's VISA cards with funds amounting to US$849,479 to import earthmoving equipment for civil construction purposes at the Project. It is alleged that the respondents failed to provide bills of entry to the CBZ Bank as proof of receipt of the imported goods for acquittal purposes within 90 days of effecting payment.

Magistrates Court and High Court Proceedings

In Case No. CRB P 9114-5/18, before the Magistrates Court, the respondents pleaded not guilty and excepted to all four charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The exception was premised on the assertion that the facts as alleged in the Charge Sheet and State Outline did not disclose any offence, whether as alleged or at all.

The learned magistrate found that the charges in question did capture the essentials expected of a charge to enable the accused persons to properly plead thereto. He accordingly dismissed the exception.

Aggrieved by that ruling, the respondents filed an application to the High Court for the review of the magistrate's decision on the ground that it was grossly unreasonable and patently contrary to law. The respondents also filed a separate application to the High Court for the stay of proceedings before the Magistrates Court pending the determination of the application for review.

The latter application was heard and determined in Case No. HC11205/18 (as Judgment No. 849-18 per MUSAKWA J) on 31 December 2018. The learned judge found that there were no formal defects in three of the four counts and that the applicants (the respondents herein) had no prospects of success on review in respect of those three counts. The third count was found to be defective. The court accordingly ordered that the criminal trial be suspended only in respect of the third count and that the trial could proceed in respect of the other three viable counts.

High Court Judgment on Review

In the judgment which the applicant seeks leave to appeal against, the High Court found that the learned magistrate had misdirected himself because he dealt with an issue that was not before him. In particular, he had been asked to adjudicate whether or not the facts alleged disclosed an offence, but, instead, decided that the charges against the respondents were properly framed and therefore disclosed an offence. The High Court held that this was a reviewable irregularity that went to the root of the matter. The court then proceeded to determine the question itself by way of considering, in great detail, the merits of the entire case against the respondents. I summarise its principal findings as follows:

(i) The payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) were advance payments authorised by contract and this negated any intention to deceive or cause prejudice.

(ii) The Zimbabwe Power Company (Pvt) Ltd (ZPC) incurred its own loss by negligently paying the respondents before any performance bond or guarantee was put in place.

(iii) Where a contractual agreement provides effective redress, the dispute should be resolved contractually and liability should not be extended under the different remedial regime of Criminal Law.

(iv) The respondents did not commit any offence under the Exchange Control Regulations as the Guidelines in question were not made under the Exchange Control Act, and, in any event, the respondents could have sought exchange control approval after entering into the relevant contract.

(v) No criminal offence was established in relation to the non-acquittal of payments as the Authority in question was not promulgated under the Exchange Control Act and did not prescribe any offence.

(vi) Wicknell Munodaani Chivayo merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director and was therefore wrongly charged in his personal capacity.

(vii) To the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) imputes vicarious liability to Wicknell Munodaani Chivayo in respect of an offence allegedly committed by Intratrek Zimbabwe (Pvt) Ltd (Intratrek), the charges in question breached the protective provisions of sections 49(1) and 56(1) of the Constitution and were therefore invalid.

(viii) On the totality of the facts and the merits, it was highly improbable that a criminal suit would succeed, and, therefore, its continuation would violate section 49(2) of the Constitution.

The learned judge concluded by reiterating that a Criminal Court does not have any jurisdiction to hear or determine any case of a civil nature as in casu.

He then set aside the learned magistrate's ruling and substituted it with an order that the exception to the charges should succeed, resulting in all of the charges being quashed and both respondents being formally acquitted....,.

Grounds of Appeal

The intended grounds of appeal herein, as paraphrased, aver that the learned judge a quo misdirected himself and/or erred in the following respects:

1. In finding that the facts do not disclose an offence of fraud when it was apparent from the State Outline that the respondents had misrepresented to the Zimbabwe Power Company (Pvt) Ltd (ZPC) that a total of US$1,960,125 had been paid to subcontractors when such money had not been paid and was used by the respondents for their own benefit to the prejudice of the Zimbabwe Power Company (Pvt) Ltd.

2. In failing to consider the provisions of section 278(3) of the Criminal Law Code which impute that a person's conduct can constitute both criminal and civil liability and that the State could resort to criminal redress in a matter that was not purely contractual.

3. In finding that the facts do not disclose an offence of fraud as against the second respondent where he was chargeable in his personal capacity as a director of the first respondent and there was a paper trail to show that both respondents misrepresented facts to the Zimbabwe Power Company (Pvt) Ltd (ZPC) to its prejudice and that the funds were used by both respondents for their own benefit.

4. In making a finding that effectively interfered with un-terminated proceedings where there were no exceptional circumstances to warrant such interference and where trial had commenced and evidence was being led before the Magistrates Court.

5. In finding that the facts pertaining to the fourth count do not disclose an offence of entering into an agreement without seeking prior exchange control approval.

The relief sought by the applicant, on appeal, is that the appeal should succeed and that the judgment of the court a quo be set aside and substituted with an order dismissing the exception and continuing the trial under Case No. CRB P 9114-5/18....,.

Whether Offence of Fraud Disclosed

Counsel for the respondents submit that paragraphs 10 and 11 of the State Outline do not relate to the essential elements of fraud. In particular, there is no allegation that the purported misrepresentation was intended to deceive and operated to procure the release of funds to the prejudice of the Zimbabwe Power Company (Pvt) Ltd (ZPC), either at the time that the invoices were presented or at the time when the funds were released.

Furthermore, there is no specific allegation made against Intratrek Zimbabwe (Pvt) Ltd (Intratrek), the first respondent.

Counsel for the applicant counters that the averments in paragraphs 10 and 11 of the State Outline relate to the manner in which the offence came to light. The preceding paragraphs indicate that the respondents submitted invoices and certificates for advance payments in respect of the works to be carried out. They clearly allege an intention to deceive and cause prejudice at the time of the alleged misrepresentations. Paragraphs 10 and 11 capture what transpired thereafter when the supposed sub-contractors distanced themselves from the invoices submitted by the respondents.

I have already summarised, at the outset, the two counts of fraud as set out in the Charge Sheet.

There can be no doubt that they both allege the offence of fraud by misrepresentation through the submission of invoices for a feasibility study and pre-commencement works on the Project. Additionally, they further allege that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total amount of US$5,624,130=80 to the respondents on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice to the Zimbabwe Power Company (Pvt) Ltd (ZPC).

It is also clearly alleged, in both counts, that in making those misrepresentations the respondents acted unlawfully and with actual or constructive intent to deceive and defraud the Zimbabwe Power Company (Pvt) Ltd (ZPC).

Turning to the State Outline, the details of the alleged fraud are elaborated as follows;

On 23 October 2015, ZPC signed the Contract with Intratek which was represented by Chivayo (paragraph 4). The Contract provided that the ZPC would advance monies for feasibility studies and pre-commencement activities (paragraph 5). Between 4 December 2015 and 22 January 2016, Chivayo submitted two invoices on the pretext of feasibility study implementation; the ZPC's Finance Director acted upon the misrepresentation and released US$2,435,650 in nine instalments and paid the same into Intratrek's CBZ bank account on the understanding that the subcontractor concerned was going to carry out the feasibility study (paragraph 6).

However, ZPC's Technical Director, Projects Manager, and suspended Managing Director indicated that they never met the sub-contractor during the supposed study period; there was also no record of the subcontractor entering Zimbabwe during the period in question (paragraph 7). Between 15 February 2016 and 25 April 2016, Chivayo submitted three invoices supported by payment release certificates, purportedly for the implementation of pre-commencement works on the Project (paragraph 8).

Again, ZPC's Finance Director acted on the misrepresentation and released total advance payments of US$3,188,476 in twelve instalments into Intratrek's CBZ bank account (paragraph 9). On 26 April 2016, the ZPC's Finance Director requested Chivayo to provide a schedule of commitment in respect of the funds released towards the implementation of the Project; Intratrek's Company Secretary misrepresented that a total of US$1,960,125 had been paid to sub-contractors, who, however, distanced themselves from the invoices submitted by Chivayo (paragraph 10).

The paper trail indicates that Chivayo used the funds meant for the feasibility study and pre-commencement works for his own personal benefit by diverting them to various individuals and companies; the funds were used to purchase vehicles and air tickets, and for the settlement of school fees and civil suits (paragraph 11). The ZPC suffered total prejudice in the sum of US$5,624,130=80 and nothing was recovered (paragraph 16).

The crime of fraud is defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23) (the Code) in the following terms:

“Any person who makes a misrepresentation –

(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;

shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person…,.”

The essential elements of fraud, as defined in this provision, are trite:

(a) The making of a misrepresentation;

(b) Actual or constructive intention to deceive another person;

(c) Actual or constructive intention to cause another person to act upon the misrepresentation to his prejudice; and

(d) Resultant actual or potential prejudice to another person.

Having regard to the Charge Sheet and State Outline in casu, I have no doubt that the foregoing elements are aptly captured in those documents. These include the making of misrepresentations through the submission of false invoices, the intention to deceive and defraud the Zimbabwe Power Company (Pvt) Ltd (ZPC) through its officers and agents, the intention to cause the Zimbabwe Power Company (Pvt) Ltd's officers and agents to act upon the misrepresentation to its prejudice, and, as a consequence of such conduct and intent, causing actual prejudice to the Zimbabwe Power Company (Pvt) Ltd (ZPC) in the not insignificant amount of US$5,624,130=80.

All of these allegations, if proved, would undoubtedly constitute the offence of fraud.

In the premises, I take the view that the learned judge a quo misdirected himself in finding that the facts alleged in the Charge Sheet, as read with the State Outline, do not disclose an offence. Consequently, he erred by upholding the exception to the charges of fraud levelled against the respondents, quashing those charges, and acquitting the respondents, on a view of the facts that could not reasonably be entertained. At the same time, he erred in law in his mis-appreciation of the essential components of the crime of fraud and their application to the facts before him. On a proper view of those facts, he could not reasonably have inferred the innocence of the respondents.

It follows that the first ground of appeal is meritorious and enjoys sound prospects of success on appeal.

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

The applicant sought a review of the second respondent's decision placing the applicant on his defence on the following grounds;“1. The irrationality or outrageousness of the 2nd respondent's decision of dismissing the Applicant's application for discharge at close of State case when the evidence led in court clearly show that ...

The applicant sought a review of the second respondent's decision placing the applicant on his defence on the following grounds;

“1. The irrationality or outrageousness of the 2nd respondent's decision of dismissing the Applicant's application for discharge at close of State case when the evidence led in court clearly show that the State failed to prove a prima facie case against the applicant. Put differently, 2nd Respondent dismally failed to objectively consider the evidence which clearly exonerated the applicant from any wrong doing.”

The brief background to the matter is that the respondent pleaded not guilty before the Magistrates Court to a charge of fraud as defined by section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. At the conclusion of the State case, the respondent applied for discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The application was dismissed.

He now seeks review of that decision.

Generally, it is not desirous for a higher court to interfere in an incomplete trial before an inferior court. JOHN REED-ROWLAND in his book Criminal Procedure in Zimbabwe says about this…,;

“The High Court's statutory power of review can be exercised at any stage of criminal proceedings before an inferior court.

However, in uncompleted cases, this power should be sparingly exercised.

It would only be appropriate to do so in those rare cases where otherwise grave injustice might result or justice might not be obtained. For example, if grave irregularity or impropriety occurred in the proceedings, it would be appropriate for the High Court to consider the matter. Generally, however, it is preferable to allow the proceedings to run their normal completion and seek redress by means of appeal or review.”

Section 29 of the High Court Act [Chapter 7:06] gives the High Court extensive review powers in criminal proceedings of the Magistrates Court. Such powers are exercisable at any stage of the hearing. However, as stated above such powers should be used sparingly whilst proceedings are still incomplete so as to discourage the overflow of the High Court with incomplete proceedings of the Magistrates Court.

The High Court should not usurp or interfere with incomplete proceedings before the Magistrates Court to allow the magistrate to independently deal with the discretion imposed on him/her. The High Court should only interfere where actual and permanent prejudice will be occasioned to the applicant. The applicant must provide proof that he/she will suffer prejudice should the High Court not interfere at this stage.

The applicant averred that the decision of the magistrate is irrational and outrageous.

The particulars for the fraud were that;

“In that on various separate periods but during the period extending from 1 February 2006 to 2 February 2012, and at Kwekwe Consolidated Gold Mines, Kwekwe, Lee Waverly John unlawfully misrepresented to Carslone Enterprises (Pvt) Ltd that he was the new owner or director of Kwekwe Consolidated Gold Mines (KCGM) through an omission to disclose the permanent dereliction of the mine by previous owners and directors whose whereabouts are currently unknown to the prosecutor; that is to say, the accused, holding himself out as a director and new owner of KCGM, tributed the mine to Carslone (Private) Limited thereby causing prejudice to the good reputation and good administration of the Registrar of Companies office and the Ministry of Mines and Mining Development.”

The applicant argued that Carslone Enterprises denied that it was the complainant in the matter.

The evidence of Mirirai Chiremba, a representative of Carslone Enterprises, exonerated the applicant. Mirirai Chiremba testified that Carslone Enterprises did not suffer any prejudice. The witnesses from the Companies Office also testified that her office suffered no prejudice. She testified that, in terms of papers held by her office, the applicant was a director of Kwekwe Consolidated Gold Mines (KCMG). No evidence was led from the Ministry of Mines and Mining Development.

Evidence by the investigating officer was hearsay evidence and should have been rejected by the court.

In his ruling, the magistrate conceded that the evidence of Chakanyuka, from the Companies office, was of no assistance. He also found that Mirirai Chiremba's evidence showed his company benefitted financially and there was no prejudice on his company. The magistrate found that there was evidence that the applicant improperly and fraudulently acquired directorship and control of Kwekwe Consolidated Gold Mines (KCGM).

From a reading of the magistrate's ruling, there is no evidence that the applicant committed the offence he was charged with.

A specific charge was put to the applicant but the magistrate seems to be of the view that the evidence led so far prima facie establishes guilty of fraudulently acquiring directorship of Kwekwe Consolidated Gold Mines (KCGM).

The charge put to the applicant herein involves misrepresentation to Carslone Enterprises (Pvt) Ltd that he was a director of Kwekwe Consolidated Gold Mines (KCGM) causing prejudice to the good reputation of Carslone Enterprise, Registrar of Companies office, and the Ministry of Mines.

No evidence was led to show prejudice of good reputation of the three entities.

I am satisfied that the evidence led did not prove a prima facie case against the defendant warranting him being put to his defence.

Whilst it is correct that in terms of section 157 of the Criminal Procedure and Evidence Act it is not necessary to identify the persons who have been defrauded, in this case such persons were mentioned. It became essential to prove the elements of the offence vis-a-vis those persons, which the respondent failed to do.

No misrepresentation were proven to have been made to Carslone Enterprises.

I am satisfied that to allow the applicant to be placed on his defence would irreparably prejudice him. The magistrate's ruling is tantamount to placing the onus on the applicant to prove his innocence. The Constitution has already placed the onus on the State to prove the guilt of an accused person. See Ndlovu v Regional Magistrate, Eastern Division and Anor 1989 (1) ZLR 264 (H) and Makamba v Sithole N.O. and Anor HH83-04.

The decision by the trial magistrate is not supported by evidence led and hence it is unreasonable. In fact, the decision is completely wrong consideration being had to the evidence submitted before the magistrate. I am of the view that the decision defies all logic and is completely wrong.

In the result, the application succeeds and it is ordered as follows;

(1) The decision of the second respondent, of dismissing the applicant's application for discharge at the close of State case, under case number R874/12, be and is hereby set aside.

(2) Applicant is discharged and acquitted at close of State case.

(3) There be no order as to costs.

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The Court holds that it is not in the interests of justice that the applicant be granted leave to appeal against the decision of the court a quo because no constitutional matter arose or was raised in the decision of the court a quo. Consequently, the application has no merit and cannot succeed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

In February 2015 the applicant was charged in the Magistrates' Court at Bulawayo with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The background to the charge is that the applicant was the legal practitioner representing one Lungisani Sibanda (“Lungisani”), who was serving a seven-year prison sentence at Khami Maximum Prison for the offence of car theft. After a failed attempt was made to obtain liberty for Lungisani Sibanda, it was alleged that the applicant obtained a fake warrant of liberation misrepresenting that Lungisani had been granted bail pending appeal. It was alleged that the fake warrant of liberation was given to Lungisani's sister Lilian. She was the one to present the fake warrant of liberation of her brother from prison to the relevant authorities. In the statement she gave to the police, Lilian implicated the applicant.

After a full trial, the applicant was convicted of the offence and sentenced to forty-eight months' imprisonment, of which twelve months were suspended for five years on conditions of good behaviour.

Dissatisfied with the decision of the trial court, the applicant noted an appeal against both conviction and sentence to the High Court on the following grounds:

“Ad conviction

1. The learned magistrate in the court a quo erred, at law, in holding that Absolom Hlupo's evidence was admissible as against his co-accused, who, in this case, was the appellant.

2. The learned magistrate erred in holding that the Warrant of Liberation was fake when no evidence was led from the Clerk of Criminal Court's office in the Provincial Magistrates Court, that no record existed thereat where such bail had been granted warranting the Clerk of Criminal Court's stamp to be used.

3. The learned magistrate erred, at law, in holding that the call history regarding the cellphone was admissible as evidence against the appellant without considering, at all, the veracity, authenticity, and reliability of such evidence. A fortiori, the learned magistrate erred at law in holding that such evidence was admissible when it also clearly infringed on the appellant's constitutional rights and was obtained using a secondary legislation that is not supreme to the Constitution of Zimbabwe. Such evidence, in any event, had not been tendered in terms of the law.

4. The learned magistrate erred in accepting and considering Lilian Tapera's evidence admissible when she testified without being cautioned in terms of the law.

5. The learned magistrate further erred in seeking to have Lilian Tapera's evidence corroborated when, in the first place, it had been taken outside the purview of the law, had clear contradictions, prevarications (sic) and could not be relied upon. Despite this, the learned magistrate held that she had acquitted herself very well totally ignoring the aforesaid.

6. The learned magistrate erred in holding that Lilian Tapera's evidence was adequately corroborated by Joyce Sibanda and Richard Bhebhe's evidence totally ignoring, in the process, the glaring inconsistencies in her evidence and also between her evidence and that of these two witnesses.

7. The learned magistrate erred in holding that the envelope which Lilian Tapera saw at the appellant's office was one and the same envelope which was then delivered at Khami Prison and from which a Warrant of Liberation was discovered, and, on 23 December 2014, not on 24 December 2014 as appeared in the charge.

8. The learned magistrate further erred in holding that appellant's visit to Lilian Tapera's house was the reason why the said witness then gave a different statement at CID Frauds totally ignoring many factors that proved that such a finding was inconsistent with Lilian's own behaviour, her own evidence, and that of her mother, Joyce Sibanda, and the appellant.

9. The learned magistrate erred, at law, in totally disregarding the appellant's evidence which was most probable and accusing him of taking his legal role to the witness stand, and, in the process, ignoring the fact that he stood firmly and gave his evidence clearly.

Ad sentence

The learned magistrate's sentence was excessive and harsh to the extent that it induced a sense of shock in light of:

(a) The grounds of appeal highlighted above.

(b) Its inconsistency with the factors highlighted in mitigation i.e. the appellant's personal circumstances and that no prejudice was suffered.

(c) The fact that it basically amounted to paying lip service to the mitigating factors.”

The High Court found no merit in the appeal against conviction. It was dismissed.

The appeal against sentence succeeded.

The High Court held that the sentence was unduly harsh and excessive. It noted that the applicant was a young lawyer who was at the inception of his career. It was of the view that in passing sentence his immaturity as a lawyer had to be considered. As a result, the applicant's sentence was reduced from forty-eight months to thirty-six months' imprisonment, twelve months of which were suspended for five years on condition that the applicant did not within that period commit an offence involving dishonesty for which upon conviction he was sentenced to imprisonment without the option of a fine.

Still aggrieved, the applicant noted an appeal against the confirmation of his conviction to the court a quo.

In his grounds of appeal, he argued that the High Court erred in accepting the evidence of the two witnesses who testified that the Warrant of Liberation was fake, as such evidence was not in conformity with the law regulating the authenticity of public documents. He further argued that the High Court erred in failing to regard Lilian Tapera as an accomplice witness. The argument was also made that the High Court erred in dismissing the applicant's challenge against the admissibility of the call history of his cellphone. Lastly, it was argued that the High Court erred by failing to rule against the admissibility of the confession by the appellant's co-accused in convicting the applicant.

The court a quo was of the view that the warrant of liberation was fake beyond a reasonable doubt and that the evidence adduced put this fact beyond any doubt. As regards the issue whether Lilian Tapera was an accomplice witness or not, the court a quo held that the High Court was correct in finding that she was not an accomplice, as there was no evidence that she participated in the generation and presentation of the fake warrant of liberation. Further, the court a quo found that the call history from the applicant's cell phone could be used as evidence against him because his objections to its use in the trial court were not substantiated, and that, in any event, he had consented to it being adduced as evidence.

It was the court a quo's finding that, in terms of section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the “CPEA”), the confession of one Hlupo could not be used against the applicant. As such, it was held that the trial court erred in admitting the confession into evidence against the applicant. However, the court a quo found that, even excluding the confession, there was sufficient evidence against the applicant to prove beyond a reasonable doubt that he had committed fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appeal was accordingly dismissed.

On 19 February 2019 the applicant filed the present application for leave to appeal in terms of Rule 32(2) of the Rules, as read with section 167(5)(b) of the Constitution. He alleged that his right to equal protection and benefit of the law in terms of section 56(1) of the Constitution was violated by the court a quo when it upheld the authenticity of the call records.

The applicant further alleged that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated by the court a quo. The allegation was that the applicant's right to challenge evidence was violated because he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated. He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It was also the applicant's allegation that his right to be presumed innocent, in terms of section 70(1)(a) of the Constitution, was infringed upon by the court a quo. The applicant challenged the finding by the court a quo to the effect that “that the provincial court had issued a warrant was not only remote but fanciful.”

The application was opposed by the respondent.

Its argument was that the findings of the court a quo were correct because the evidence proved beyond a reasonable doubt that the warrant of liberation was fake. It was further denied that there were any infringements of the applicant's constitutional rights. Therefore, no constitutional issues arose for determination. It was prayed that the application be dismissed.

APPLICATION OF THE LAW TO THE FACTS

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Rules gives effect to section 167(5)(b) of the Constitution. It provides, in relevant part, as follows:

“32. Leave to appeal

(1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters. It is the highest court in all constitutional matters.

The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regards to the specialized jurisdiction of the Constitutional Court. At p9 of the cyclostyled judgment the Court said:

“The Court is a specialised institution, specifically constituted as a Constitutional Court, with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

In Muza v Saruchera and Ors CC05-19 the Court noted that the purpose of the right of appeal granted to a person under Rule 32(2) of the Constitutional Court Rules, the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Rules, are premised on the existence of a decision by a subordinate court on a constitutional matter.

The purpose of the Constitutional Court Rules is to ensure proper exercise of jurisdiction by the Constitutional Court.

The matter that gives rise to the need for the Constitutional Court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

In Sadziwani v Natpak and Ors CC15-19 the Court emphasised the need for protecting its jurisdiction and process from abuse. It stated the following…,:

“Jurisdiction is the power or competence of a court to adjudicate on, determine and dispose of a matter.

In this regard, the Court is a creature of the Constitution. The principle of constitutional supremacy, as enshrined in section 2 of the Constitution, guarantees that the Court only exercises jurisdiction over matters which are specifically set out in terms of section 167, as read with section 332, of the Constitution.

The principle also ensures that the jurisdiction of the Court, as the highest court on constitutional matters and connected issues, cannot be ousted by legislation.

The Court's power to adjudicate on constitutional matters ought to be construed as a means by which life can be given to the objectives set out in section 3 of the Constitution. The Court, as the highest and most authoritative tribunal in constitutional matters, is tasked with the responsibility of safeguarding the values and objectives of the Constitution. It is charged with the duty of ensuring that these objectives are realized and given effect to. Thus, it is imperative that the Court is not unduly saddled with cases that have no bearing on the interpretation, enforcement or protection of the Constitution.

It is incumbent upon the Court to guard its jurisdiction jealously and eliminate the abuse of its powers. The integrity of the Court is of utmost importance and it ought to be protected.

The deliberately narrow jurisdiction of the Court is meant to shield it from abuse and ensure that it only adjudicates upon that which it is constitutionally mandated to adjudicate on.”

The object of the exercise of jurisdiction by the Constitutional Court is always the protection, promotion and enforcement of the supremacy of the Constitution. Where there is no decision by a subordinate court to justify the allegation of actual or threatened violation of a constitutional provision, the Constitutional Court will have no cause for the exercise of its jurisdiction.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

It is the applicant's case that the decision of the court a quo violated his right to equal protection and benefit of the law, enshrined in section 56(1) of the Constitution, when it upheld the authenticity of the call records and upheld the reliance of the trial court upon them.

With regards to the admissibility of the call history as evidence against the applicant, the court a quo held the following…, in Tungamirai Nyengera v The State SC67-18:

“The record indicates that the issue that was before the court a quo is whether or not the call histories were admissible.

The appellant contended that they were not as the evidence 'clearly infringed on the appellant's constitutional rights, and were obtained using secondary legislation that is not supreme to the Constitution of Zimbabwe.'

Clearly, there is no merit in this ground.

The right to privacy given in the Constitution is derogable and the law under which the call history was ordered by the Magistrates' Court is an example of one such derogation.

The rules governing the admissibility of documentary evidence in criminal trials are aimed at ensuring a fair trial through the elimination of any potential prejudice to an accused person, who is clearly the weaker of the two adversaries involved in a criminal trial.

All these rules, however, yield and fall by the wayside when an accused person consents to the production of documents tendered by the State.

Before the trial court, the appellant consented to the production of the call histories without any demur. There was therefore no issue before that court regarding the admissibility of the call histories.”

The court a quo dismissed the applicant's argument regarding the call history because the applicant had consented to the production of the records at his trial. The finding by the court a quo was a finding of fact, which was made after an assessment of the laws of evidence.

Where an accused person consents to the adduction of incriminating evidence, he cannot turn around and challenge a conviction which was secured based on that evidence.

In coming to this conclusion, the court a quo did not decide a constitutional matter because there was no need to interpret, enforce or protect the Constitution in order to come to the conclusion that the call history was admissible as evidence against the applicant. As such, the applicant's argument in this regard ought to fail.

The applicant also argued that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated.

In this regard, he asserted that his right to challenge evidence was impinged upon because the evidence of one Lungile Moyo was at odds with section 253 of the Criminal Procedure and Evidence Act, in that he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The position of the law is that a purely factual matter does not amount to a constitutional issue.

In S v Boesak 2001 (1) SA 912 (CC), LANGA DP put this position beyond doubt when he stated the following…,:

“A challenge to a decision of the SCA, on the basis only that it is wrong on the facts, is not a constitutional matter.

In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory.

There is a need for finality in criminal matters.

The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises.

Disagreement with the SCA's assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.

An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.”

As a result, the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt is not, for the reasons given above, a constitutional matter.

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated.

He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It is common cause that the applicant was charged with and convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is also common cause that the Criminal Law (Codification and Reform) Act was in force at the time the applicant's trial commenced. The allegation that the conduct for which the applicant was convicted was not an offence at the time of his trial was not made in seriousness and must be dismissed.

The applicant further advanced the argument that the finding by the court a quo that the warrant of liberation was fake infringed his right to be presumed innocent until proven guilty, as enshrined in section 70(1)(a) of the Constitution.

This finding by the court a quo is also alleged to be a violation of section 165(1)(a) of the Constitution, which guarantees that justice must be done to all irrespective of status.

The applicant further argued that section 70(1)(a) of the Constitution must be read together with section 18(1) of the Criminal Law (Codification and Reform) Act. Section 18(1) of the Criminal Law (Codification and Reform) Act provides:

“18 Degree and burden of proof in criminal cases

(1) Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.”

As already found, the findings of the court a quo, regarding the authenticity of the warrant of liberation, are within the realm of the law of evidence, particularly the assessment thereof, and do not give rise to a constitutional issue.

A decision as to the sufficiency of evidence that is required to sustain a conviction in a criminal prosecution does not ordinarily involve the interpretation or application of any provision of the Constitution. Neither does it involve the application of a law inconsistent with the Constitution, or have any other connection with the Constitution that would make that decision a constitutional matter.

The Constitution must be involved in some way before such a finding can be said to raise a constitutional issue within the jurisdiction of the Constitutional Court. The fact that there was no constitutional matter that was raised before and determined by the court a quo cannot be meaningfully disputed. The applicant was merely aggrieved by the non-constitutional findings of the court a quo and this means that the jurisdiction of the Constitutional Court is not triggered in the circumstances.

In De Lacy and Anor v South African Post Office [2011] ZACC 17…, the Constitutional Court of South Africa held as follows regarding an applicant's dissatisfaction with the factual findings of a lower court:

“Then, the essence of their contention was that the Supreme Court of Appeal should have held that indirect intent was sufficient to render an organ of State vicariously liable for the wrongs of its employees and that on the evidence they had established that the Post Office's employees had acted with indirect intent to defraud.

That was the applicants' constitutional focus.

And yet the bulk of its papers were devoted to an exhaustive critique of the factual findings of the Supreme Court of Appeal. Their grievance had all the hallmarks of a mere dis-satisfaction with factual findings.

The Post Office opposed the application. On 9 July 2009, this Court dismissed it for lack of prospects of success.”…,.

See also Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17.

Consequent to the above, the issue relating to the hierarchy of courts, in non-constitutional, matters arises. In this regard, section 169(1) of the Constitution is paramount. It provides as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

In Rushesha and Ors v Dera and Ors CC24-17 GWAUNZA JCC…, interpreted this provision in the following manner:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination. Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”

Section 26(1) of the Supreme Court Act [Chapter 7:13] re-affirms the above position. It states:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court held that the principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act, are clear. At p22 of the cyclostyled judgment, the Court said:

“A decision of the Supreme Court, on any non-constitutional matter in an appeal, is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.

The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

There was no constitutional issue raised before and determined by the court a quo. The dismissal of the appeal by the court a quo remains final. It cannot be appealed against. As such, the application has no merit and it ought to be dismissed.

DISPOSITION

The application is dismissed with no order as to costs.

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MAKONESE J and MOYO J

The appellant in this matter was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the Provincial Magistrate sitting in Bulawayo.

He was sentenced to 48 months imprisonment with 12 months imprisonment suspended on the usual conditions.

Dissatisfied with both conviction and sentence he then approached this court.

At the hearing of the appeal, we dismissed the appeal against conviction and allowed the appeal against sentence with reasons to follow. Here are they:

In the Notice of Appeal, which I will not reproduce herein, the appellant is not satisfied with the manner with which the court a quo treated the evidence of the witnesses.

The appellant avers that the evidence of Absolom Hlupho was inadmissible as against the appellant as it was accomplice evidence. That the court a quo erred in finding that the warrant of liberation was fake and that the court a quo erred in finding that the cellphone call history was admissible. Also, that the learned magistrate erred in accepting Lilian Tapera's evidence and in finding that it had been adequately corroborated.

On the sentence, the appellant is of the view that the sentence imposed by the learned magistrate is unduly harsh and excessive.

The facts of this matter, in a nutshell, are that the appellant, a legal practitioner by profession, with the assistance of Absolom Hlupho, a prison officer, sought to cause the release of a convicted and serving prisoner through a misrepresentation that the prisoner had been granted bail pending an appeal and a warrant had thus been issued for his liberation.

The State case hinged on the evidence of Lilian Tapera, the sister to the serving prisoner whose release it is alleged the appellant sought to clandestinely secure.

She gave the court a detailed account of what transpired and how she paid the appellant $1,500 for his services.

The court rightfully found her as a credible witness, in our view, for there are no pointers to lack of credibility in her evidence.

As for Absolom Hlupo's evidence, this court does not find any issues with it.

Absolom Hlupo expressly told the court that he realized that lies would not take him anywhere and he decided, midway through his cross-examination, to tell the court the truth. He confirmed that the warrant of liberation came from the appellant.

The findings of the trial court, with regard to these witnesses' testimony, cannot be faulted.

On the authenticity or otherwise of the warrant of liberation, the evidence of Lungile Moyo and that of Freedom Potera, the clerk of the Regional Court, amply covered that point to the satisfaction of the court.

On the constitutionality or otherwise of the cellphone history which the appellant decided not to respond to on the merits, we find that there is absolutely no basis for the challenge being proffered, for, the right to privacy enshrined in the Constitution, is not absolute.

As correctly held in the case of Tendai Biti v Chief Superintendent Majuta HH156-11 BHUNU J held that where the police have reasonable cause to investigate crime the subject's rights to privacy must, of necessity, give way to common good and public interest to fight crime.

There is therefore absolutely nothing wrong with the production and the acceptance of the cell phone history by the trial court.

Lilian Tapera could not be held to be an accomplice when in fact she told the court that she genuinely believed in the whole process that the appellant engaged in and she actually thought there was nothing amiss. On page 47 of the record she actually told the court that, as she waited for the processing of her brother's release papers at Khami, the appellant phoned her and advised her to quickly leave the place (Khami prison) - that she should run away.

She said she decided to wait there.

Surely, if she had been part of the clandestine plan to release her brother she could have fled at that juncture. Her decision to wait shows that she did not appreciate that there was a serious problem with the whole plan.

In the case of Chimbwanda v Chimbwanda SC28-02 it was held, by ZIYAMBI JA, as follows:

“It is trite law that an Appellate Court will not interfere with the findings of fact made by a trial court and which are based on the credibility of witnesses. The reason for this is that the trial court is in a better position to assess the witnesses from its vantage point of having seen and heard them….,.

The exception to this rule is where there has been a misdirection or a mistake of fact or where the basis upon which the court a quo reached its decision was wrong.”

We have found no misdirection in the manner with which the trial court dealt with the evidence before it.

We have already canvassed the evidential issues herein.

We found that in fact the evidence against the appellant was overwhelming and that the court a quo rightly convicted him....,.

(a) The conviction is confirmed.

HH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

Both accused persons are charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They are alleged to have, on various occasions, during the period extending from 29 March 2009 to 14 August 2009, defrauded the Government of Zimbabwe of two billion ...

The charge sheet is framed as follows:

“Accused are guilty of FRAUD as defined in s136 of the Criminal Law (Codification and Reform) Act [Cap 09:23].

In that, on various separate occasions, but during a period beginning 29 March 2009 to 14 August 2009, and at the Ministry of Mines and Mining Development and at Zimbabwe Mining Development Corporation's Offices in Harare, both accused persons, and in common purpose, unlawfully and fraudulently made misrepresentations with intent to defraud the Government of Zimbabwe, that is to say, Lovemore Kurotwi misrepresented to the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation that Core-Mining and Mineral Resources (Pty) Limited (a shelf company in South Africa) was a special purpose vehicle of a company known as Benny Steinmeitz Group Resources (BSGR) (which was supposed to be the Guarantor in a Joint Venture Agreement between Core-Mining and ZMDC) in common purpose with Dominic Mubaiwa who later joined in the criminal enterprise and unlawfully prepared and entered into an unapproved and uncirculated Memorandum of Agreement between Marange Resources (Pty) Ltd signed on 24 July 2009 and later acquired a cabinet authority to proceed to South Africa to conduct a due diligence exercise on Co-Mining (a mere shelf company) which both accused persons purported to be a Special Purpose Vehicle of Benny Steimeitz Group (BSGR) thereby ending up concluding a share holder Agreement between Zimbabwe Mining Development Corporation and Core Mining and Mineral Resources (Pty) Limited instead of Benny Steinmeitz Group (BSGR) which all along had been held out by both accused persons as the Guarantor of Core Mining thereby causing an actual prejudice of two billion United States Dollars to the Government of Zimbabwe.”

Both accused persons pleaded not guilty, and, thereafter, proceeded to except to the charge.

Their main complaint is that although the charge makes allegations of misrepresentation to the Ministry of Mines and the Zimbabwe Mining Development Corporation none of the papers indicate to which natural person the misrepresentation was made. It was argued that both entities, being artificial persons, could only act though natural persons. It was therefore necessary to specify the natural person to whom the misrepresentation was made otherwise the accused will be prejudiced in their defense if they were left in the dark or to speculate as to which natural person they are alleged to have made the misrepresentation.

The accused's second complaint is that although the State alleges actual prejudice of two billion United States Dollars, it does not inform them as to how the prejudice came about.

In light of such objections, the accused requested the Court to order the delivery of the relevant particulars in terms of section 177 of the Criminal Procedure and Evidence Act [Chapter 9:07] to enable them to prepare their defence. That section reads:

“177 Court may order delivery of particulars

(1) The court may either before or at the trial, in any case, if it thinks fit, direct that particulars be delivered to the accused of any matter alleged in the indictment, summons or charge, and may, if necessary, adjourn the trial for the purpose of the delivery of such particulars.

(2) Such particulars shall be delivered to the accused or to his legal representative without charge, and shall be entered in the record, and the trial shall proceed in all respects as if the indictment, summons or charge had been amended in conformity with such particulars.

(3)…,.”

Section 146 of the Criminal Procedure and Evidence Act [Chapter 9:07] prescribes the essentials of a valid and competent charge. It states that:

“146 Essentials of indictment summons or charge

(1) Subject to this Act, and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.”

Thus, the State is under an obligation to frame a charge, among other things, so as to inform the accused person of the offence he is facing together with the particulars or essential elements of that offence. The section also requires the State to inform the accused of the person against whom the offence was committed and the nature of the property involved, if any.

Failure to give such particulars would render the charge defective and exceptiable.

It is therefore necessary to examine and see if the charge complies with the essentials laid down in section 146 of the Criminal Procedure and Evidence Act.

It is common cause that the accused were informed that the offence they were facing is fraud committed against the Government of Zimbabwe in the sum of two billion United States Dollars. In short, they are being accused of defrauding the Government of Zimbabwe of two billion United States Dollars.

It is trite that the Government of Zimbabwe is a legal entity with full legal persona capable of suing and being sued in its own name. It has a separate legal existence from its officials and servants. The Government of Zimbabwe, duly constituted by the Constitution of Zimbabwe, is, therefore, undoubtedly, a juristic person.

HALO's South African Company Law through the cases, 6th ed, 1999 defines a juristic person as:

“a body corporate or association other than a natural person, that is endowed by law with the capacity to have rights and duties apart from its members.”

The State, being a juristic person, ought to be treated like any other juristic person: TETT and CHADWICK, Zimbabwe Company Law, 2nd ed…, states that:

“The effect of a company having separate legal personality is that it can engage in any activity and is entitled to the same rights and remedies as any other juristic person.”

The law, therefore, makes no distinction between the framing of charges involving natural persons and artificial persons. Thus, the Government of Zimbabwe, like any other juristic person, has the full locus standi in judicio to appear and be heard as the complainant in any Court without being carried on the back of any natural person.

Thus, it is sufficient for the State to allege that the misrepresentation was made to a juristic or artificial person without naming any natural person.

It is instructive to note that section 146 of the Criminal Procedure and Evidence Act does not make it a requirement that where the complainant is a juristic person the charge must specify the natural person to whom the misrepresentation was made.

The failure to mention or specify the natural person to whom the alleged misrepresentation was made cannot possibly prejudice the accused in their defence because the State elaborated, in its summary, that, the misrepresentation was made to the juristic persons through written letters which will be produced in court through named competent witnesses, including the Permanent Secretary in the Ministry of Mines.

Written documents which the accused can interrogate speak for themselves in the normal run of things: letters disclose their author, addressee, and the communication conveyed from one party to the other.

I can therefore perceive no prejudice to the accused if they have been provided with access to the relevant documents upon which the alleged misrepresentations are founded.

As regards the quantum of prejudice, the State elaborated that the amount of prejudice was occasioned in one capital sum arising from the misrepresentation. In the light of that explanation, it will be illogical to order the State to provide a non-existent break down when it alleges that the prejudice was not incurred in instalments.

The purpose of an indictment is to inform the accused of the case he is going to meet in Court without necessarily providing the evidence required to prove the allegations.

The summary of the State case provides a precis of the evidence upon which the State intends to rely on in proving its case.

Viva voce evidence, documents, exhibits, and any other evidence constitute the actual poof of the allegations against the accused as alleged in the indictment and summarized in the outline of the State case.

It is important not to confuse one stage from the other.

Having carefully perused the charge sheet and the State's response, it appears to me that the particulars required by the accused person, in respect of the indictment, are properly contained in the summary of the State case that is yet to be read in open Court.

For that reason alone, both the exception and application for further particulars cannot succeed. Both objections are accordingly dismissed.

HB05-15 : THE STATE vs ADRIAN MUCHAZIVEPI
Ruled By: MAKONESE J and TAKUVA J

This matter was referred to the National Prosecuting Authority in terms of section 54(2) of the Magistrates' Court Act [Chapter 7:10] with a request of either increased jurisdiction or referral to the High Court for sentence as provided for by section 225(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Upon going through the record, the Prosecutor General's office withheld its support for the conviction of the accused for fraud through the use of section 274 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The background to this matter is that on the 13th August 2014, a Provincial Magistrate based at Bulawayo addressed a memorandum to the Registrar in the following terms:

“May you place the above record with urgency before any judge of the High Court with the following comments:

Accused appeared before me on a charge of theft; however, during the course of the trial, I realized that the evidence was pointing to fraud and I invoked section 274 of the Codification and Reform Act (sic) [Chapter 9:23] and convicted the accused of fraud.

I then referred the record to the Prosecuting Authority (sic) in terms of section 54(2) of the Magistrates Court Act [Chapter 7:10] where it was declined to proceed in terms of the section.

I therefore write seeking for guidance and I have also attached the Prosecuting Authority's view in respect of my referral.”

On receiving the record, I observed that the matter involved interesting aspects of law and therefore invited the National Prosecuting Authority and the legal practitioner for the accused person to submit written submissions.

I am indebted to both State and defence counsel who took time to explore the authorities on the matter to assist the court in arriving at an appropriate decision.

It is abundantly clear that the learned magistrate was in a legal quandary which could only be untangled by a proper application of the law. The learned magistrate was in an invidious position.

The Facts

The accused person appeared before the magistrate facing a charge of theft as defined in section 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The brief allegations are that the accused sold Dandy products to customers on a credit basis during the time of his employment at Dandy Zimbabwe in Bulawayo and converted a total sum of US$44,336=42 to his own use.

The accused had raised fictitious invoices purporting that the company was owed money by various customers in order to cover up the offence. The offence was discovered by a Private Investigator who was hired to look into the activities of the accused. At the relevant time, the accused was employed by Dandy Zimbabwe as a Sales Representative.

The accused, who was legally represented at the trial, denied the allegations throughout.

The State led evidence from five witnesses. The accused gave evidence, and, at the end of the trial he was found guilty.

The accused was however found guilty of fraud and not guilty of theft. The learned magistrate sought to rely on the provisions of section 274 of the Criminal Law (Codification and Reform) Act.

The learned magistrate then referred the matter to the Prosecutor General applying for increased jurisdiction on the sentence she intended to impose.

The National Prosecuting Authority did not support the application for increased jurisdiction on a point of law and hence the referral of the matter to this court.

Analysis of the Law

Section 274 of the Criminal Law (Codification and Reform) Act provides as follows:

“Where a person is charged with a crime the essential elements of which include the essential elements of some other crime, he or she may be found guilty of such other crime, if such are the facts proved and if it is not proved that he or she committed the crime charged.”

It is noted that the above section is similar to the Republic of South Africa section 270 of the Criminal Procedure Act No.51 of 1977 which states:

“If the evidence on a charge for any offence not referred to in the preceding sections of this Chapter does not prove the commission of the offence so charged, but proves the commission of an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.”

I agree with the State's reasoning that the two sections were put in place by the legislature to provide for situations whereby the accused committed an offence which is not a competent verdict or charged in the alternative but whose essential elements are encompassed in the offence charged. The accused may be found guilty of the proven offence whose essential elements are found in the offence for which the accused had been charged.

The position is well canvassed in a number of South African decisions and is well established in the following decisions:

S v Anias 1995 (2) SALR 735 (A); S v Mei 1982 (1) SA 299 (O); S v Kuvare 1992 (2) SALR 180 (NM); S v Mavundla 1980 (2) SA 187 (7); and S v Nyamza and Another 2000 (1) SALR 626.

In casu, the accused was charged with theft but was convicted of fraud.

Not all the essential elements of fraud are found in the theft charge. In particular, the element of misrepresentation is not found in the charge of theft.

The learned magistrate clearly erred and misdirected herself when she sought to rely on the provisions of section 274 of the Criminal Law (Codification and Reform) Act in finding the accused guilty of fraud.

She could not do so in terms of the law.

It is instructive to note that section 113(4) of the Criminal Law (Codification and Reform) Act is peremptory in its application when it provides that:

“For the avoidance of doubt, it is declared, that, where a person, by means of a misrepresentation as defined in section one hundred and thirty five, takes any property capable of being stolen, intending to deprive another person of the ownership, possession, or control of the property, the competent charge is fraud and not theft.”

It is clear that in accordance with the above provision there can be no doubt the learned magistrate could not lawfully resort to the use of section 274 of the Criminal Law (Codification and Reform) Act in finding the accused guilty of the offence of fraud instead of theft as she sought to do.

Disposal of the Matter

In the circumstances of the matter, the learned magistrate should have referred the matter to the Prosecutor General in terms of section 54(1) of the Magistrates Court Act so that the Prosecutor General would have resorted to the provisions of section 225(a)(iii) of the Criminal Procedure and Evidence Act.

The current status of the trial is that it has not run its full course as envisaged under section 54(1) of the Magistrate Court Act. The learned magistrate had not pronounced her sentence, and, therefore, this court is still at large, in a review matter, to either confirm, vary, or set aside the conviction.

The issue of autre fois convict does not, in any event, arise because this court is not confirming the conviction which occurred as a result of a misapplication of the law.

In terms of section 29(2)(i) of the High Court Act [Chapter 7:06], I am satisfied that the proceedings in the court a quo are not in accordance with real and substantial justice and that the conviction cannot stand.

I am alive to the fact that the accused is entitled to a speedy trial. In the same breath, the accused is entitled to a fair trial which accords with all the notions of justice and fairness.

In the result, I make the following order:

1. The conviction is hereby quashed and set aside.

2. The matter is hereby referred to the Regional Court for a trial de novo on the appropriate charge.

SC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

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.

In pursuit of the agreement, the complainant mortgaged his home and various other properties, including his wife's car, to raise a total of US$350,000 which he ploughed into the agri-business. The business venture kick-started with the complainant closely guarding his investment for fear of losing his mortgaged properties and investment.

The learned judge in the court a quo found that the strict administrative measures adopted by the complainant must have unsettled the other Directors, thereby generating conflict and irreconcilable differences.

The conflict culminated in the minority Directors locking out the complainant.

They eventually filed a new CR2 with the Registrar of Companies in a bid to strip the complainant of all his rights and interest in Hedgehold (Pvt) Ltd.

Despite their concerted endeavour to terminate their business relationship with him, they continued to hold onto his investment to his exclusion and detriment.

In a bid to achieve their fraudulent scheme, the appellants are alleged to have crafted and filed fraudulent CR2, CR11 and CR14 documents with the Registrar of Companies to divest the complainant of his Directorship and shareholding in Hedgehold (Pvt) Ltd.

The appellants denied the allegations of fraud both in the Magistrates Court and in the court a quo on appeal.

THE ISSUES FOR DETERMINATION

The appellants attacked the court a quo's judgment on both procedural and substantive grounds.

The grounds of appeal however raise one crisp issue for determination. The single issue for determination is: whether or not the court a quo correctly found the appellants guilty of fraud as charged.

WHETHER OR NOT THE COURT A QUO CORRECTLY FOUND THE APPELLANTS GUILTY OF FRAUD AS CHARGED

The appellants challenged their conviction on the basis that the respondent failed to discharge the onus of proving the essential elements of fraud beyond reasonable doubt.

Section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the definition and essential elements of fraud as follows:

“136 Fraud

Any person who makes a misrepresentation -

(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;
shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person, and be liable to:

(i) A fine not exceeding level fourteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or

(ii) Imprisonment for a period not exceeding thirty-five years; or both.”

The Criminal Law (Codification and Reform) Act defines the offence of fraud in simple though somewhat frosty and verbose language, such that it needs further elucidation to give effect to the intention of the lawmaker.

In plain layman's language, fraud may however be defined as dishonestly making a false misrepresentation with the intention to cause actual or potential prejudice to another person.

The intention of the legislature, in section 136 of the Criminal Law (Codification and Reform) Act, was to proscribe and punish theft by deceitful means.

In the context of the statutory definition of fraud, its essential elements may be paraphrased as follows:

1. Making a misrepresentation to another person.

2. With the intention to cause another person to act on the misrepresentation to the actual or potential prejudice of any person.

Section 136 of the Criminal Law (Codification and Reform) Act is couched in broad terms encompassing a situation where the misrepresentation is made to a person other than the subject of the intended prejudice. To constitute fraud, it is sufficient that a misrepresentation is made to any person with the intention of causing any other person actual or potential prejudice.

In casu, it does not therefore matter that the misrepresentation was made to the Registrar of Companies with the intention of causing prejudice to the complainant.

It is plain from the evidence led in the trial court that the appellants completed and submitted the alleged fake fraudulent CR2 document dated 23 January 2013. The alleged fake CR2 form now reflects that all the shares in Hedgehold (Pvt) Ltd were allotted to Open Tribe Foundation Trust on 25 January 2013. The State alleged that the fake CR2 was backed up by an equally fraudulent special resolution of Hedgehold (Pvt) Ltd crafted in the following terms:

“IT WAS RESOLVED THAT:

1. Cancellation of CR2

That the unauthorised CR2 which sought to change the ownership of the company in contravention of paragraph 4 and 5(b) of the company's Articles of Association be amended and replaced.

2. Allotment of shares

That the un-issued shares in the company, being 1,870 (one thousand eight hundred and seventy) shares of 1 (one) dollar each, be allotted in full to Open Foundation Trust Trading and that a form CR2, share allotment form, giving effect to the allotment be lodged with the Registrar within the prescribed time.”

The effect of the amended CR2 form was to deceitfully strip and divest the complainant of his entire shareholding and huge investment in Hedgehold (Pvt) Ltd to the tune of US$350,000 without his consent.

We therefore find no merit in the appellants complaint that the court a quo misdirected itself in substituting its own discretion for that of the trial court. This is because the trial court's acquittal of the accused, in the face of overwhelming evidence, was irrational and grossly unreasonable.

In Chiodza v Siziba SC04-15…, relied upon by the appellants, this Court held that:

“The general rule regarding factual findings made by a trial court is that they will not be upset by an Appellate Court unless there had been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court.”

In this case, the basis of the court a quo's interference was the failure by the magistrate to appreciate the full extent of the State's case and the evidence on record leading to a failure of justice.

The court a quo found that there was clear, cogent expert evidence establishing, beyond reasonable doubt, that the documents admittedly crafted and presented to the Registrar of Companies by the appellants, to the prejudice of the complainant, were fraudulent.

A perusal of the record of proceedings shows that the learned judge a quo's remarks, at p10 of the cyclostyled judgment, to the effect that the trial magistrate strangely went out of his way to justify the fraudulent acts of the appellants, are beyond reproach.

That being the case, the court a quo cannot be faulted for finding that the trial court misdirected itself in acquitting the appellants in the face of overwhelming evidence establishing the accused's guilt.

DISPOSITION

That the State proved the accused's guilt beyond reasonable doubt is beyond question. For that reason, the appeal can only fail.

It is accordingly ordered that the appeal be dismissed.

HH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment, that, unlike South Africa, in this country, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.

See also State v Kuruneri HH59-07 and State v Morgan Tsvangirai & Ors HH119-03.

Section 198(3) of the Criminal Procedure and Evidence Act opens with the words: “If at the close of the case for the prosecution the court considers that…,.”

In my view, there should be no difficulty for the Review Court, where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence.

That decision would be contrary to the law.

The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether, at the close of the State case, there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and, in particular, the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge.

I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a Tribute Agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant.

None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant.

The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application, counsel for the respondents submitted, that, the second respondent must have considered that the evidence of the witness from the firm of chartered accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of chartered accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent, that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find, that, there was a failure by the second respondent to see that, at the close of the State case, there was, in reality, no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find, that, all the criteria for discharge at the close of the State case, as set out in State v Kachipare 1998 (2) ZLR 271 (S) and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit.

The balance of convenience favours the postponement of the trial to allow the review application to be heard. I am of the view, that, the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence.

The magistrate seems to have seen something but which in reality was non-existent.

He failed to see that such evidence, as was led, either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference.

The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief, the review application will just become one for academic purposes. At any rate, the matter will be ventilated and canvassed more fully on the return day.

In the meantime, I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court, under CRB R874/12, are hereby stayed.

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

This is an appeal in respect of both the conviction and sentence.

The appellant was convicted, after a protracted trial, by the Magistrate sitting at Chivi on 1 July 2019 and he was represented by counsel for the appellant.

The appellant was convicted of fraud, as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 4 years imprisonment of which 1 year imprisonment was conditionally suspended for 5 years on the usual conditions of good behaviour. A further 1 year was suspended on condition the appellant paid restitution in the sum of US$471 and RTGS133=21 through the Clerk of Court at Chivi on or before 31 August 2019.

The appellant has to serve an effect sentence of 2 years imprisonment.

At the time of the hearing of the appeal, counsel for the appellant submitted, that, the appellant, who has been in prison for about 4 months, has already paid the restitution in the sum of US$471 and RTGS133=21.

The facts of this matter, which give rise to this appeal, are largely common cause save for the appellant's role in the commission of the offence.

The appellant was jointly charged with three other accomplices Cordination Magavhe, aged 28 years, residing at Chivi Growth Point; Babra Masvosvere, aged 20 years, residing in Beitbridge; and Shelter Ezra, aged 28 years, residing at Chivi Growth Point.

The other three accomplices, Cordination Magavhe, Babra Masvosvere and Shelter Ezra pleaded guilty to the charge and each was sentenced in the same manner as the appellant.

The appellant is the only one who denied the charge hence the matter proceeded to trial.

The offence of fraud in this matter was committed with surgical precision.

The three accomplices, Cordination Magavhe (Cordination), Barbra Masvosvere (Babra), and Shelter Ezra (Shelter) together with the appellant are said to have hatched a plan to defraud Mukuru.Com Money Transfer Company branch situate inside N. Richards Wholesale at Chivi Growth Point.

As already said, the only disputed fact is the appellant's role or involvement in this criminal enterprise as the appellant denied any role or knowledge of the commission of the offence.

Cordination Magavhe, as his name denotes, was the co-ordinator of this whole criminal enterprise as he was an ex-employee of Mukuru.Com Money Transfer Company at Chivi Growth Point. He provided a clipboard, counterfeit audit papers titled Mukuru.Com, 2 T-shirts inscribed 'Mukuru Send Money Home' and some cash box keys which he had stolen while employed at Mukuru.Com Transfer Company branch situate at Chivi Growth Point. It is Cordination Magavhe who briefed the other accomplices of the tactics to be employed in committing the fraud.

Barbra Masvosvere was assigned the prominent role of executing the fraud and stealing of the money at Mukuru.Com Transfer Company branch at Chivi Growth Point. This is probably because she was the only one who was not a resident at Chivi Growth Point as she resides in Beitbridge and was therefore not known at Chivi Growth Point.

The appellant's role, which he disputes, is that he provided a laptop from which the counterfeit Mukuru.Com fraudulent documents were generated and acted as a sentinel during the execution of the offence by Barbra Masvosvere.

Shelter Ezra, again, as her name denotes, provided shelter for the culprits as the plan to commit this fraud was polished up at her residence at Chivi Growth Point; she offered accommodation to Babra and provided a handbag Babra used.

The fraudulent plan was executed in the following manner:

On 11 January 2019, Babra proceeded to the Mukuru.Com Company branch at Chivi Growth Point inside N. Richards Wholesale where she posed as an auditor from Mukuru.Com Company who had come to carry out official duties at the branch. She was wearing the t-shirt inscribed “Mukuru Send Money Home”; was carrying a handbag and a clipboard attached with the fake or counterfeit Mukuru.Com Company documents.

Babra carried herself as an auditor from Mukuru.Com Company Head Office in Harare who had come to perform her duties at the Mukuru.Com Company branch at Chivi. She approached the complainant, Raviro Chirape, a cashier employed at the Mukuru.Com Company branch at Chivi Growth Point. Babra then proceeded to carry out 'an audit' inside the booth at Mukuru.Com branch at Chivi Growth Point and Raviro Chirape believed Babra was an auditor. Babra proceeded to check the financial books and cash on hand in order to carry out the reconciliation.

At the material time, there was US$5,475 and $533 bond notes which Barbra counted with Raviro Chirape.

After about an hour, Barbra asked the cashier, Raviro Chirape, to go and buy for her some water to drink. When the cashier went to buy the water, Babra simply took the money at the Mukuru.Com Company branch. After the cashier returned, Babra later left with the cash and caused the cashier to complete fake audit forms which showed that Babra had carried out audit duties unaware that Babra had stolen the money in her absence.

The culprits then regrouped at Shelter's house and proceeded to Zvishavane to share the loot.

The matter came to light the same day when Raviro Chirape, the cashier at Mukuru.Com Company branch at Chivi Growth Point, later realised that all the money in her possession had been stolen.

The CID details from Mashava later on investigated the matter, and, on the same day, arrested Cordination and the appellant with the help of CCTV at N. Richards Wholesale at Chivi Growth Point.

Upon their arrest, CID details recovered United States dollars from Cordination and the appellant.

Further, an HP laptop bearing serial numbers of counterfeit documents used by Babra when she misrepresented herself to Raviro Chirape the cashier at Mukuru.Com Company Branch at Chivi Growth Point as an auditor, were recovered.

Thereafter, Cordination led to the arrest of Babra, who had returned to Beitbridge, and also accused Shelter.

The amount of US$760, $67 bond notes was recovered from Babra and US$1,800 from Shelter. Both the appellant and Cordination were found with some cash.

Further, the t-shirt inscribed 'Mukuru Send Money Home'; the clipboard; a purse; the attire Babra was wearing posing as an auditor were recovered at Shelter's residence thrown inside a blair toilet.

The total cash stolen is US$5,475 cash and $533 bond cash. The amount recovered is US$3,589 cash and $75 bond cash.

The appellant gave a very lengthy Defence Outline covering 23 paragraphs.

In brief, the appellant denied conniving to commit the fraud with Cordination, Babra and Shelter. The appellant said the only person he knew was Cordination and he was not known to Babra and Shelter. The appellant denied taking any part in the commission of the offence. He denied playing any role in the commission of the offence or getting any share of the loot.

The appellant, however, admitted to the following facts, which are;

(a) That, he is a very close friend of Cordination Magavhe, an ex-employee of Mukuru.Com Company branch at Chivi.

(b) That, he is well known to the cashier, Raviro Chirape, at Mukuru.Com Company branch at Chivi Growth Point as he frequents N. Richards Wholesale or transacting at the said Mukuru.Com Company branch.

(c) That, on the day in question, on 11 January 2019, he indeed was at N. Richards Wholesale Chivi Growth Point where the Mukuru.Com Company Branch is situated hence his images were captured on CCTV. However, the appellant said his mission at those premises was not to carry out any surveillance in furtherance of any criminal conduct but to meet a female friend, Eustina Mbaradze, and for shopping purposes inside N. Richards Wholesale.

(d) That, on the way into N. Richards Wholesale he passed by the Mukuru.Com booth which is by the entrance and greeted the cashier who is the complainant, Raviro Chirape.

(e) That, the fraudulent documents used by Babra to commit the fraud were generated from his HP laptop. The appellant, however, said this was done by his friend Cordination Magavhe who had unfettered access to his laptop which had no password and that this was done without the appellant's knowledge or approval.

(f) That, he was found in possession of money stolen from Mukuru.Com Company branch at Chivi Growth Point, being United States Dollars. The appellant, however, said he had been given this money by his friend, Cordination Magavhe, who owed the appellant some money and that it was not the appellant's share of the loot.

After hearing evidence from the complainant, Raviro Chirape, the cashier at Mukuru.Com Company branch at Chivi, Barbra Masvosvere, a convicted accomplice who had been properly warned, and the investigating officer, Nxumalo Mxolisi, all for the State; and from the appellant and his defence witness, Cordination Magavhe, also a convicted accomplice, the court a quo found in favour of the State and dismissed the appellant's version of events or evidence as false.

Irked by this decision, the appellant approached this court, on appeal, and the grounds of appeal, in respect of both conviction and sentence, are as follows:

“GROUNDS OF APPEAL

1. RE: CONVICTION

1.1 The learned Magistrate erred in law when he convicted the appellant of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in the absence of proof beyond reasonable doubt, particularly in that;

(a) He wrongfully made inferences from circumstantial evidence, which inferences were not the only reasonable inferences which could be made in the circumstances.

(b) He wrongfully relied on evidence of an accomplice in circumstances where the risk of false incrimination was very high and had not been eliminated.

(c) He wrongfully rejected the appellant's explanation in his defence which was probable in the circumstances.

1.2 WHEREFORE, appellant prays for the success of the appeal and for the setting aside of the decision of the court a quo convicting the appellant of the offence and substitution of the same with a verdict of Not Guilty.”

In relation to sentence, the appellant is of the view, that, community service should have been imposed in light of the mitigating factors which include, inter alia, the delay of 5 months in finalising the matter; that the appellant is a first offender; that half of the stolen money was recovered; that the amount stolen was not substantial; that the sentence imposed was within the threshold of 24 months effective sentence and that the appellant is a suitable candidate for community service.

I should commend counsel for the appellant, Mr Chivasa, for his detailed and well researched heads of argument. Equally so, I need to commend the learned trial magistrate for a very lucid judgment and a clear appreciation of not only the facts in issue but the law involved.

The simple task for this court is to assess, as regards conviction, if the court a quo properly applied the principles of circumstantial evidence and/or the liability of co-perpetrators.

The liability of co-perpetrators is provided for in section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

This provision simply reinforces the common law principle or doctrine of common purpose which entails, that, for the doctrine of common purpose to apply in any case, it has to be proved that the accused did something to associate himself with the actions of the person who actually committed the offence knowing that the other person intended to commit the said offence or foreseeing that possibility; see State v Mubaiwa & Anor 1992 (2) ZLR 362 (S); State v Chauke & Anor 2000 (2) ZLR 494 (S)…,.

This position is well articulated by the esteemed author BURCHELL in South African Criminal Law and Procedure Volume 1, 3rd Edition…, wherein the learned author said;

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for the specific criminal conduct committed by one of their number which falls within the common design.”

In casu, if it is proved that the appellant indeed connived with Cordination Magavhe or Barbra Masvosvere or Shelter Ezra, or all of them, in perpetrating this fraud, the appellant's criminal liability, irrespective of his actual role, may be inferred on the basis of the doctrine of common purpose.

In specific terms, it is said the appellant agreed to commit this offence; that he provided the laptop used to generate the fraudulent documents; that he acted as a sentinel during the commission of the offence; and that he got the spoils of the loot.

This is however denied by the appellant, but the court a quo disbelieved him.

Babra's evidence is that Cordination, who was the brains behind this fraud, briefed her that the appellant would be engaging in surveillance during the execution of the actual fraud by Babra, as a sentinel, to ensure Babra's safety.

Indeed, Babra was given, by Cordination, and actually used, the fraudulent documents generated from the appellant's laptop.

In her evidence, Babra said that although she personally had not met the appellant, some person Cordination told her was the appellant would call her while she was executing the fraud giving her real time information of what was happening around the crime scene at Mukuru.Com Company premises at Chivi Growth Point.

Babra said after successfully executing the fraud, she met Cordination and Shelter after which they proceeded to Zvishavane to share the loot.

She said the other person she was told was the appellant was constantly calling them updating them on what was happening at Mukuru.Com Company branch at Chivi Growth Point in the aftermath of the commission of this offence. She said this person was identified by Cordination as the appellant and that the appellant had therefore not joined them specifically for that reason.

Lastly, Babra said as they shared the money, Cordination reserved another share for the appellant and returned to Chivi to ostensibly give the appellant his share.

Indeed, when police detectives first sighted Cordination, later that day, he was in the company of the appellant at Chivi Growth Point and the appellant was later found with part of the money stolen from Mukuru.Com Company that very day.

The assessment of the credibility of witnesses is within the domain or province of the court a quo.

Babra's evidence was that although she had not physically met the appellant at any stage, she was briefed that the appellant's role was to provide surveillance or act as a sentinel and that some other person indeed appraised her on the telephone on what was happening.

Indeed, it would have been desirable for the police to have checked the telephone records for all persons involved to verify Babra's evidence.

Nonetheless, such an omission, in my view, is not fatal to Babra's evidence. Babra was not known to the appellant. She is a convicted accomplice. She had nothing to gain by falsely incriminating the appellant.

The question which arises, therefore, is why would she go out of her way to fabricate the existence and role of a fourth player in the execution of this offence.

The court a quo found none and there is no such reason, in my view.

On that basis, she was found to be a credible witness and the danger of false incrimination was found to be none existent.

On the other hand, the same cannot be said for Cordination.

Despite later pleading guilty to this offence, Cordination, upon his arrest, in the early hours of 12 January 2019, denied any role in the commission of the offence - even after some US$307 had been found under his bed.

This can be gleaned from a copy of the police running diary log produced through the investigating officer.

Cordination denied ever being involved in this matter and said the money found in his possession was money given to him by his parents (see the version of page 52 recorded in Shona).

Apparently, he only admitted to the offence when police's evidence became overwhelming as investigations progressed.

When Cordination testified, he sought to exonerate the appellant alleging that the appellant played no role. He denied ever telling Babra that the appellant was involved and that the money he gave the appellant, stolen from Mukuru.Com, was to pay a debt owed to the appellant. He further said that he used the appellant's laptop to generate fraudulent documents without the appellant's knowledge.

In my respectful view, Cordination's evidence was properly rejected.

He is the appellant's friend and the two were very close. He admitted, under cross-examination, that he would naturally protect the appellant (see page 46 of the record). Most importantly, he initially lied to the police.

The court a quo was correct to reject his evidence and assess him as an incredible witness.

It is for the said reasons that the appellant's criminal liability was based on the doctrine of common purpose or a co-perpetrator.

The court a quo thus found, that, the appellant was at the scene of crime at N. Richards Wholesale; that he had knowledge of the offence or criminal act; that he worked in cahoots with the other accomplices, including Babra, by manifesting a sharing of common purpose in providing his laptop, acting as a sentinel, providing surveillance, and getting a share of the criminal proceeds.

The appellant, on that basis, has the necessary mens rea to commit the fraud; see S v Mgedezi & Ors 1989 (1) SA 687 (A).

The next issue to consider is the question of circumstantial evidence.

The celebrated case of R v Blom 1939 AD 188…, outlines how circumstantial evidence should be treated by the trial court in criminal matters. The cardinal principles are that;

(i) That, the inference sought to be drawn must be consistent with all proved facts. If not, the inference cannot be drawn.

(ii) That, the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then, there must be doubt whether the inference sought to be drawn is the correct one; see also S v Tambo 2007 (2) ZLR 33 H; S v Marange & Others 1991 (1) ZLR 244 (S).

It is competent for a court to return a verdict of guilty solely on circumstantial evidence; see S v Shonhiwa 1987 (1) ZLR 215 (S); S v Vhera 2003 (1) ZLR 668 (H)…,.

The court a quo applied these principles to the circumstances of this case. The proved facts were juxtaposed with the appellant's explanation and the trial court concluded, that, the appellant's explanation cannot possibly be true.

The relevant facts which were considered are not in issue and are as follows:

(a) Cordination, who was the brains behind this fraud, is the appellant's close friend. This is admitted by the appellant. In fact, the appellant and Cordination were later seen together that very same day by the police.

(b) The appellant was present at the crime scene at the material time. This is confirmed not only by the CCTV but by the appellant himself. The appellant's explanation is that N. Richards Wholesale is a public place and that he wanted to see a friend there and to do some shopping. Indeed, that may be so. The appellant actually passed by the complainant's booth and greeted her.

(c) The appellant was found in possession of some of the stolen cash, in United States dollars, identified by the serial numbers, the very day the money had been stolen. Upon his arrest, the appellant, as per the investigating officer, said he had been given the money by his relatives. However, later, after the money had been matched with the serial numbers, he changed the story and said he was given the money by Cordination as payment for money he was owed by Cordination.

It is therefore clear the appellant was not consistent in explaining how he became in possession of the stolen money and had therefore told a lie on a material issue.

(d) The fraudulent documents used to commit the fraud were generated from the appellant's laptop. The appellant's explanation is that Cordination is the one who generated the fraudulent documents using the appellant's laptop as he had unlimited access to it and it had no password.

No further explanation is given as to why Cordination chose to use the appellant's laptop.

Indeed, each of those facts proven or not in issue, taken in isolation may, on their own, not lead to any adverse inference. However, when they are considered conjunctively, together with the accused's own explanation, a proper adverse inference. in my view, was made.

The close friendship the appellant had with Cordination is admitted.

Is it plausible that the appellant would be paid his debt with the stolen money the very day it was stolen?

Why would the appellant lie to the police about the source of this money initially?

One would raise eyebrows as to why Cordination would choose to use a dear friend's laptop to generate fraudulent documents and why the appellant did not know about it. The appellant's presence at the crime scene dovetails with Babra's evidence as regards the appellant's role.

In my view, the court a quo assessed the credibility of all the witnesses and made findings of fact.

The appellant's evidence, or version of events, was rightly rejected.

The principles of law applicable to the facts of co-perpetrators or acting in common purpose, together with circumstantial evidence, are not only well articulated but properly applied to the facts of this case. I find no misdirection at all on the part of the court a quo. The threshold or degree of proof required in criminal matters was achieved.

The appellant's conviction is unassailable in the circumstances. Consequently, the appeal against conviction cannot succeed.

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Fraud and Criminal Promise

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Law Portal Zimbabwe

Fraud and Criminal Promise

HH40-12 : REGGIES NAZARE vs THE STATE Ruled By: BHUNU J and DUBE J

HB93-09 : ADMIRE KAMBA vs THE STATE Ruled By: CHEDA J

SC44-14 : FUNGAYI NYANGARI and HEATHER SHAMU vs THE STATE Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

HB67-10 : THE STATE vs WILSON BANDA Ruled By: MATHONSI J and CHEDA J

HB69-10 : THE STATE vs DOUGLAS ZULU and BISMARK MAPOSA Ruled By: CHEDA J

HB93-10 : REGINA MLISA vs THE STATE Ruled By: CHEDA J and NDOU J

HH108-13 : KETIAS ZINGUNZI vs THE STATE Ruled By: HUNGWE J and MAVANGIRA J

HB53-13 : THE STATE vs RODRICK DUBE Ruled By: MAKONESE J AND CHEDA AJ

HHH08-10 : CFX BANK LIMITED vs RTO ENGINEERING [PRIVATE] LIMITED and MESSENGER OF COURT Ruled By: KARWI J

HB120-14 : SINANZWEYINKOSI NDLOVU vs THE STATE Ruled By: KAMOCHA J and MAKONESE J

SC33-16 : ELPHAS NCUBE vs THE STATE Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

HH24-15 : WILFRED NYAMBO and AUXILLIA NYAMBO vs THE STATE Ruled By: MANGOTA J and TAGU J

HB85-16 : THE STATE vs MVURACHENA TADZEMBWA Ruled By: MATHONSI J and MAKONESE J

HH84-15 : EDMORE CHAGONDA vs THE STATE Ruled By: HUNGWE J and BERE J

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE Ruled By: HUNGWE J and BERE J

SC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O. Ruled By: PATEL JA

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA Ruled By: MATANDA-MOYO J

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MALABA CJ

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MAKONESE J and MOYO J

HH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA Ruled By: BHUNU J

HB05-15 : THE STATE vs ADRIAN MUCHAZIVEPI Ruled By: MAKONESE J and TAKUVA J

SC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

HH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O. Ruled By: MAFUSIRE J

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Zimbabwe

HH40-12 : REGGIES NAZARE vs THE STATE
Ruled By: BHUNU J and DUBE J

HB93-09 : ADMIRE KAMBA vs THE STATE
Ruled By: CHEDA J

SC44-14 : FUNGAYI NYANGARI and HEATHER SHAMU vs THE STATE
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

HB67-10 : THE STATE vs WILSON BANDA
Ruled By: MATHONSI J and CHEDA J

HB69-10 : THE STATE vs DOUGLAS ZULU and BISMARK MAPOSA
Ruled By: CHEDA J

HB93-10 : REGINA MLISA vs THE STATE
Ruled By: CHEDA J and NDOU J

HH108-13 : KETIAS ZINGUNZI vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

HB53-13 : THE STATE vs RODRICK DUBE
Ruled By: MAKONESE J AND CHEDA AJ

HHH08-10 : CFX BANK LIMITED vs RTO ENGINEERING [PRIVATE] LIMITED and MESSENGER OF COURT
Ruled By: KARWI J

HB120-14 : SINANZWEYINKOSI NDLOVU vs THE STATE
Ruled By: KAMOCHA J and MAKONESE J

SC33-16 : ELPHAS NCUBE vs THE STATE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

HH24-15 : WILFRED NYAMBO and AUXILLIA NYAMBO vs THE STATE
Ruled By: MANGOTA J and TAGU J

HB85-16 : THE STATE vs MVURACHENA TADZEMBWA
Ruled By: MATHONSI J and MAKONESE J

HH84-15 : EDMORE CHAGONDA vs THE STATE
Ruled By: HUNGWE J and BERE J

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE
Ruled By: HUNGWE J and BERE J

SC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MAKONESE J and MOYO J

HH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

HB05-15 : THE STATE vs ADRIAN MUCHAZIVEPI
Ruled By: MAKONESE J and TAKUVA J

SC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

HH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J