This is an appeal against conviction. Both appellants were
convicted of theft by a magistrate sitting at Gwanda. The charge was framed as
follows:
“Contravening section 113 of the Criminal Law (Codification
and Reform) Act [Chapter 9:23] (“Theft”); in that on the 10th day of
October 2013, and at Gonda North Mine, Freda, Gwanda, Lourens Botha (Senior)
and Lourens Botha (Junior) or both or one or more of them unlawfully stole 165
KVA generator and quirl bowl with a total value of US$31,500= knowing that
Brownson Marcus David was entitled to own, possess or control the property
intending to deprive permanently of his ownership, possession and control of
the property.”
It is necessary for me to recount the facts as they appear
in the outline of the State case. They are that –
“1….,.
2….,.
3. On the 10th day of October 2013, the two accused
connived and went to Gonda North Mine, Gwanda and stole one 165 KVA generator
and one quirl bowl after they misled Laxin Ndlovu that the complainant had lent
them.
4. On the 22nd of October 2013, the complainant came back
and discovered that his property was missing from Gonda North Mine and informed
by Laxim Ndlovu that his property was taken by the accused persons.
5. A report was made to the police leading to the recovery
of the property from the accused persons.
6. The stolen property is valued at US$31,500= and it was
recovered. It can also be produced in court as exhibit
.7. The accused had no right to commit the offence.”
Both accused persons pleaded not guilty to the charge of
theft. To the extent that their defence outlines give a detailed history or
background to this case I will quote it from the record in extenso. It goes
like this:
“…,. The generator and bowl in question were purchased by a
company called Endless Fun (Pvt) Ltd.
That company was incorporated on 15 July 2011. Marthinus Lourens Botha
was the major shareholder at incorporation. The company entered into
partnership with Derrick Conroy and Garvin Johnson. The shareholding in the
partnership was 60% for Lourens Botha (Senior) and 40% for the other two
partners. The two accused persons were
then approached by Fredrick W. A. Lutzkie who indicated to them that he had
talked to Derrick Conroy and Garvin Johnson, and that the two were no longer
interested in the partnership. The partnership had purchased 12 mining claims
at the time. Mr Lutzkie suggested that
the accused part ways with Derrick and Garvin on the following terms:-
(a) The accused persons will keep 6 mining claims with
Derrick and Garvin taking the other 6.
(b) Derrick and Garvin were to take the generator and the
quirl bowl along with some other equipment that belonged to them privately.
(c) A full Shareholders Agreement would be drawn up to
specify the exact terms of the dissolution.
The Shareholders Agreement was, however, never done. Up to
date, it has not yet been done or finalised. So, the proposal was never carried
into completion. It had been proposed that Mr Lutzkie will transfer the company,
Endless Fun (Pvt) Ltd, to Abangane Mining (Pvt) Ltd after the Shareholders Agreement
was signed and after 6 mining claims were transferred to Sihambasonke (Pvt)
Ltd. That was also not done up to date.
No payment was made by Mr Lutzkie.
The accused will state that Marcus Brownson was never part
of or shareholder in Endless Fun (Pvt) Ltd nor a partner in the partnership
mentioned above. The accused have always been in possession of the said
equipment that is the generator and bowl. They have always been the custodians
of it. They moved the generator and quirl bowl from the yard where they were
being kept to Sihambasonke Mine for security reasons. An electric motor had
been stolen from that yard and also the electrical box of the generator had been
tempered with, thus prompting the move to take the property to safety.
The complainant reported this matter in December 2013, yet
he had taken custody of the equipment in October 2013. The accused persons will
thus deny that Mr Lutzkie had acquired ownership of the equipment in question.
They will state that if he sold the equipment to the complainant, then he sold
equipment that did not belong to him. They pray for their acquittal.”
The learned magistrate crystallized the issues as follows:
“(1) Whether the accused persons took the generator and
bowl from Gonda North Mine on 10 October 2013.
(2) Whether the generator and bowl belonged to Marcus
Brownson David or any other person not the accused persons as at 10 October
2013.
(3) If the generator and bowl belonged to someone else not
the accused persons whether the accused persons knew of that fact.
(4) Whether the accused persons intended to permanently
have the generator and quirl bowl as theirs and do with them as they pleased.”
In view of the Defence Outline, it is surprising why the
court a quo phrased the issues as it did.
The first and fourth issues are common cause. The second and third issues are inelegantly
drafted. The sole issue is whether or not the State rebutted the defence of
claim of right. In other words, whether or not Fredrick W. A. Lutzkie acquired
ownership rights in the property, and, if so, under what circumstances.
Had the court a quo stated the issues properly, it would
have dealt with the legal requirements of the defence of claim of right.
The court a quo concluded that the appellants lost their
rights to the property after they “transferred” their shareholding in
Endless Fun (Pvt) Ltd on 25 June 2013. The court reasoned as follows:
“I conclude that indeed the accused persons transferred
their shareholding in the company to Lutzkie on 25 June 2013. I must state here
that I have reached this conclusion, not on the basis of Lutzkie being a
credible witness, but on the basis of exhibit 1 and exhibit ll which the
accused persons admitted. It is neither here nor there whether any money
changed hands between the accused persons and Lutzkie. The resolutions were about transferring (not
selling) the shares. Why accused persons were transferring their shares to
Lutzkie is not relevant. All that is relevant is that they transferred their
shares in the company to Lutzkie.
When the accused persons transferred their shareholding in
the company to Lutzkie they ceased to own the company and its assets and
liabilities. Some of the assets that the company had were the generator and
quirl bowl, the subject matter of this case. With effect from 25 June 2013,
the generator and quirl bowl were no longer accused persons' assets, because
the accused persons no longer owned the company items…,.”…,.
The grounds of appeal, as outlined in the notice of appeal,
are that:
“1. The learned trial magistrate in the court a quo erred
in law in ruling that the State had proven its case beyond reasonable doubt.
The court a quo ruled that it was not relevant or material that the fourth State
witness had not paid for the purchase of shares in Endless Fun (Pvt) Ltd. The
learned trial magistrate stated that what was material was the signing of
transfer of shares form, by both appellants. This reasoning by the magistrate
in the court a quo is wrong in that for there to be a valid contract of sale at
law, there ought to be an agreement on both the merx or property that is
subject of the sale and the pretium or price that is payable for the merx or
item sold. The 4th State witness had no lawful right to sell the
property.
2. The learned trial magistrate in the court a quo erred at
law in not putting or attaching adequate weight to the fact that the 4th
State witness paid a deposit of one million Rands as a deposit for shares in
Doddieburn Holdings (Pvt) Ltd, and not for four companies as claimed by the
fourth State witness, as shown and proven in the defense case. The total
purchase price for the shares in Doddieburn Holdings and Crocoburn was three
million two hundred thousand South African Rands. This agreement related to
Doddieburn Holding (Pvt) Ltd only, and did not relate to any other venture or
companies. In his evidence, the fourth State witness stated that he paid one
million Rands, and that this was full purchase price due, and that this payment
covered all other companies and transactions including Endless Fun (Pvt) Ltd.
The evidence by the fourth State witness was false as proven in the defense
case. In the light of this false testimony by the fourth State witness the
learned trial magistrate should have ruled in favour of the appellants in the
trial and acquitted the appellant of the charges.
3. The learned trial magistrate in the court a quo erred at
law in ruling that the appellants concluded a valid and binding contract of
sale of shares in Endless Fun (Pvt) Ltd with the fourth witness. The
documentary evidence produced in court does not support that position.
4. The learned trial magistrate in the court a quo erred in
law in not putting sufficient weight to the possibility of the manipulation of
the docket as shown by the disappearance of the first statement by the third State
witness. The first statement exonerated the two appellants. The statement was
eventually replaced with an incriminating statement. A letter of complaint was
done by the appellant's legal practitioners and served on the prosecution and
the contents have not been disputed to date.
5. The learned trial magistrate in the court a quo erred in
law in finding that the appellants had the requisite intention to commit the
crime of theft. Considering the fact that the appellants believed at all
material times that they owned the equipment and had not yet concluded any sale
in respect of their shareholding in Endless Fun (Pvt) Ltd, it follows that,
taken subjectively, the appellants had no requisite intention to commit the
crime of theft.”…,.
The appellants prayed for the conviction to be set aside
and that they be acquitted.
As pointed out above, the sole issue for determination
should have been whether or not the State proved beyond a reasonable doubt that
the appellants had the requisite intention to steal. Put differently, whether
the State was able to rebut the defence of claim of right.
Exhibits 1 and 2, together with the rest of the evidence,
should have been utilized to answer this fundamental issue. Unfortunately, the
court a quo approached the issue in a somewhat piece-meal manner.
A claim of right is, as G FELTOE puts it;
“A decently clothed ignorance or mistake of law. If ignorance
or mistake of law is decently clothed that is where X either knows or suspects
that his action would normally be illegal but because of some extraneous
factual basis, he believes that his actions will not be unlawful in present
circumstances…,.
This defence only applies in respect of property crimes
such as theft, robbery or malicious injury to property”
See G. FELTOE, A Guide to the Criminal Law in Zimbabwe, 3rd
edition…,.
The requirements for the claim of right defence are:
(a) The mistake must be material.
(b) In crimes of intention, a genuine mistake will excuse.
It need not be reasonable but the unreasonableness of the mistake may be
evidence of lack of genuineness.
(c) Where the crime is one of negligence, the mistake must
be both genuine and reasonable.
(d) The defence will not avail in strict liability crimes.
(e) It must be a properly clothed mistake or ignorance.
See S v Mudimu 1981 ZLR 381 (GS); S v Tamayi & Ors 1982
(1) ZLR 267 (S); S v Mutonga SC71-83.
In S v Machokoto 1996 (2) ZLR 190 (H) it was held, inter
alia, per CHINHENGO J, that the defence of claim of right is not limited to
those cases where the belief is reasonable or justifiable. All that is required
is that the belief be genuinely entertained, the reasonableness of the belief
only being relevant to determining the genuineness of the belief. If the belief
is genuine, then the possession is bona fide.
In Mutizwa & Ors 1988 (2) ZLR 74 (SC) it was held, per
KORSAH JA…, that -
“On a charge of malicious injury to property, the
infliction of intentional wrongful injury to the property of another raises a
presumption of malice, which may be rebutted by showing a bona fide belief that
the act done was lawful. It is not necessary for the accused to show that such
a belief was reasonable, although the reasonableness or otherwise of the belief
provides cogent evidence as to whether it was held bona fide. In the present
case, it was eminently reasonable for the appellants to believe that they had a
legal right to remove the structures that had been erected in their grazing
area and the presumption of malice was accordingly rebutted.”
There is also statutory provision for this defence in
sections 233 and 237 of the Criminal Law (Codification and Reform) Act [Chapter
9:23]. Section 233 states:
“233. When mistake or ignorance of fact a defence to
subjective crimes
If a person does or omits to do anything which would be an
essential element of a crime if done or omitted as the case may be, with any
form of intention, knowledge or realization, the person shall have a complete
defence to a charge of committing that crime if, when he or she was genuinely
mistaken or ignorance to an essential fact of the crime concerned.
Subject to this Code, and any other enactment, mistake or
ignorance of an essential fact may be a defence to a crime referred to in
subsection (1) even if it is not reasonable;
Provided that the reasonableness or unreasonableness of any
mistake or ignorance may be taken into account in determining whether or not it
is genuine.”
In casu, the applicants laid a solid foundation to the
existence of bona fide claim of right. From the record, the appellants'
evidence can be summarised as follows:
The generator and quirl bowl in question were acquired by a
company in which the appellants are the shareholders. This company was
incorporated on the 15th of July 2011. The company then formed a
partnership with one Derick Conroy and one other Garvin Johnson. The
shareholding in the partnership was as follows: 60% by Endless Fun (Pvt) Ltd
while 40% shareholding was held by the two partners i.e. Mr Conroy and Mr
Johnson, in equal shares of 20% each. Subsequently, the appellants were
approached by Fredrick W. A. Lutzkie who indicated to them that he had met with
Derick Conroy and Garvin Johnson and that these two were no longer interested
in working in the partnership.
Meanwhile, the partnership had purchased twelve (12) mining
claims. Mr Lutzkie suggested that the appellants' part ways with the two
partners on the following terms:
(a) The appellants were to keep six (6) mining claims;
Derick Conroy and Garvin Johnson were to take the other 6.
(b) Derick Conroy and Garvin Johnson were to take the
generator and quirl bowl along with some other equipment. The appellants were
to remain with the other equipment that belonged to them privately.
(c) A full Shareholders Agreement was to be drawn up to
specify the exact terms of the dissolution.
According to the appellants, a Shareholders Agreement was
never reached and the partnership was never dissolved. Consequently, Fredrick
W. A. Lutzkie, in that sense, never really acquired ownership of the generator
and quirl bowl. Mr Lutzkie later sold the property to a third party, one Andre
Wagner, who, in turn, sold it to the complainant. The appellants stated that
they had always been in possession and control of the equipment in question
from Gonda North Mine to Sihambasonke Mine. They took the property in order to
secure it as there had been an incident of theft at Gonda North Mine.
Both appellants denied the allegation of theft on the basis
that they could not have stolen equipment that they had always owned and
controlled and were custodians thereof. Further, the appellants stated that
while in the proposed dissolution of the partnership, shareholding in Endless
Fun (Pvt) Ltd was to be transferred to Fredrick W. A. Lutzkie; that dissolution
was not finalised. Mr Lutzkie did not pay in terms of the purchase price, and,
as such, would not acquire ownership of Endless Fun (Pvt) Ltd as stipulated in
clause 6 of exhibit IX…,.
On the other hand, Fredrick W. A. Lutzkie, in his evidence,
stated that he paid a sum of R1,000,000= for the purchase of Endless Fun (Pvt)
Ltd in a transaction involving four (4) companies…,.
Faced with this glaring dispute of fact, the court a quo
failed to resolve it by assessing the credibility of Mr Lutzkie and the
appellants as witnesses. Instead, it relied solely on exhibits 1 and 2, arguing
that they contained conclusive evidence on their own.
This, in my view, is a misdirection in that, taken in
isolation, exhibits 1 and 2 lead one to an ambiguity as they clearly do not
reveal the full story of what transpired and why. Worse still, the court a quo
shied away, quite surprisingly, from making a specific pronouncement on Fredrick
W. A. Lutzkie's credibility as a witness.
Astoundingly, the court not only spent quite a considerable
amount of time criticizing the appellants' testimony but also unjustifiably
made adverse findings on their credibility. I take the view that these findings
are totally against common sense and logic in that the Agreement of Sale of
shares attached to the record of proceedings…, shows the purchase price for the
sale of 35% shares in Doddieburn Holdings as R3,200,000= and not R1,000,000=.
Logically, if the purchase price is R3,200,000= and only R1,000,000= is paid,
there was no full payment; as such, the agreement was not perfect as Fredrick
W. A. Lutzkie was in mora. It is common cause that Fredrick W. A. Lutzkie only
paid R1,000,000=…,. Further, the other conditions stipulated in the agreement
were not carried into effect.
Obviously, the sale had been a conditional sale and unless
all the suspensive conditions are carried into effect, the ownership, control
and possession of the equipment remained with the appellants – see Chinyegere v
Fraser 1994 (2) ZLR 254. It seems to me that the transfer was on account of an Agreement
of Sale (Ex 1X) and should not have been viewed in isolation as an end in
itself. In terms of exhibit 1X, ownership, risk, possession and control in the
sale of shares was to be transferred to the purchaser upon the discharge of the
obligations of the purchaser contained in that agreement. Fredrick W. A.
Lutzkie, the purchaser, in my view, is an incredible witness who did not
discharge his obligations in terms of the agreement. Mr Lutzkie was very
evasive on what the price for Endless Fun (Pvt) Ltd was. For example, under
cross-examination, the following exchange occured:
“Q - You say you paid R1m for the shares?
A - For four transactions and not just for Endless Fun.
Q - What was the value of the shareholding you were
purchasing in Doddieburn?
A - I am not able to answer that question. It is impossible
to break the R1m down into four parts.
Q - I put it to you the R1m was shareholding in Doddieburn
not in Endless Fun?
A - No”…,.
Further…, the questioning went as follows:
“Q - I put it to you, exhibit 1 was not an agreement of
sale, but just a proposal of the manner of the dissolution of the partnership
between accuseds and the two parties?
A - That is not correct.
Q - I put it to you, none of the conditions stipulated
in the exhibit was fulfilled?
A - They were.
Q - I put it to you, there are many conditions that were in
the proposal which were never fulfilled?
A - I have the shares in my name and the accused have not
raised an issue in 12 months.
Q - To illustrate, has the transfer of 6 claims to Abangane
Mine been done?
A – Yes.
Q - Do you have documentary proof from the Ministry of
Mines?
A - Yes. Here it is (DC shown some documents).
Q - But you are showing me the mining claims in the name of
Endless Fun. I said were 6 mining claims transferred to Abangane Mine?
A - I cannot comment on that. I cannot testify on that.
But I can tell you that, that clause was not a pre-requisite for the sale of
the shares.”…,.
I find Fredrick W. A. Lutzkie's evidence to be
unsatisfactory in two material respects.
(i) Firstly, there is nothing 'impossible' in ascertaining
the value of shares in each of the 4 companies he claimed to have purchased for
R1 million.
(ii) Secondly, he contradicted himself by initially saying
all the conditions stipulated in Exhibit 1 were fulfilled and later saying the
clause relating to 6 mining claims (which was one of the conditions) was not “a
pre-requisite for the sale of the shares.”
Also, the evidence shows that Fredrick W. A. Lutzkie was
unable or unwilling to divulge his shareholding in the other two companies,
namely, Sihambasonke Mine and Abangane Mine. He only mentioned 35% in
Doddieburn and 100% in Endless Fun (Pvt) Ltd. He did not specifically mention
the other companies. On page 38 of the
record he was asked;
“Q - The accuseds say you did not make any payment for
Endless Fun?
A - That is not true. There were four companies, all interlinked.
One could not be sold without the others being paid for also. The agreement was
for all four companies, and I paid for them and accused I received payment in
South Africa, R1million, through my lawyers in South Africa. That was for 35%
in Doddieburn, 100% in Endless Fun and so on. So all these transactions were
one.”
Now, I find it strange that Mr Lutzkie, who, in my view,
appears from his evidence to be an astute businessman bent on making profits,
would blindly purchase two companies whose value and viability was a mystery.
It seems to me that, from the totality of the evidence, it was eminently
reasonable for the appellants to believe that they had a right in law, in the
protection of their ownership rights of the property to recover or repossess the
generator and the quirl bowl. As GOLDIN AJA points out in S v Beale 1981 ZLR 269…,:
“…, what is decisive is not the lawfulness of what was done
but whether the accused believed he was entitled to do it. (see R v
Bhaya 1953 (3) SA 143 (N) at 148–9; S v Marshall 1967 (1) SA 171 (O) at 174).”…,.
In casu, the
appellants believed, genuinely, that Mr Lutzkie had not fully acquired rights
in Endless Fun (Pvt) Ltd because the other conditions tied to that contract had
not been fulfilled. Also, Mr Lutzkie had not fully paid for the shares.
Therefore, the appellants' mistake is clearly one of law in that they genuinely
believed that this was their own property. In the result, the State failed to
establish that element of mens rea which is necessary to support a conviction
on a charge of theft.
Accordingly, the convictions are quashed and the
sentences are set aside.
