The appellant's legal practitioner did not attend court
even though the notice of set down of the appeal was served upon the law firm
of Mcijo, Dube and Partners on 18 December 2015.
Although counsel for the State applied for a dismissal of
the appeal by reason of default, we could not accede to that application as we
were of the view that there was a possibility that the appellant's
non-appearance may have been actuated by the concession made by the
prosecution. There is a strong possibility that the appellant's counsel may
have assumed that the matter would be disposed of in chambers and that the set
down would fall off.
It is as a result of that possible confusion that we directed
that the matter be referred to me in chambers so that it may be disposed of
therein instead of dismissing the appeal by default. In fact, nothing would
have been achieved by proceeding that way when the State was not supporting the
conviction. The State has conceded the appeal against conviction in respect of
the two counts of fraud and theft.
For that reason the matter should not have proceeded in the
manner proposed by the State counsel given that the way it has. It should have
been disposed of in terms of section 35 of the High Court Act [Chapter 7:06]
which provides:
“Where an appeal in a criminal case, other than an appeal
against sentence only, has been noted to the High Court, the Attorney General
(read the Prosecutor General), may, at any time before the hearing of the
appeal, give notice to the Registrar of the High Court that he does not, for
the reasons stated by him, support the conviction, whereupon a judge of the
High Court, in chambers, may allow the appeal and quash the conviction without
hearing argument from the parties or the legal representatives and without
their appearing before him.”
In her heads of argument, counsel for the respondent
submitted, after demonstrating how she was drawing such a conclusion, that:
“Ultimately, and regarding the convictions in the two
counts, it is conceded that there are gaps in the State's case which gaps could
have been plunged (sic) by leading evidence from indicated witnesses, among a
plethora of them (who) could have been called to prove the State's case. The
net effect of the gaps is that triable issues remain unventilated, making […,.]
unresolved and essential elements of the offences charged not proved beyond a
reasonable doubt though there was a prima facie case against the appellant. At
the end of the day, it is conceded and submitted that the State's case is in
shaky ground and that the convictions are not supported as they are seemingly
unsafe.”
Having come to that conclusion, the State should have
proceeded in terms of section 35 of the High Court Act [Chapter 7:06] and
simply given notice to the Registrar of this court that it does not support the
conviction. Where such notice is given on an appeal, the Registrar should place
the appeal before a judge, in chambers, who, if satisfied, should allow the
appeal against conviction and quash the sentence. That way, space would be created for other
deserving and contested appeals to be set down on the roll for determination.
In future, the State should be guided accordingly in order
to avoid unnecessarily clogging the appeals roll with matters that should not
be set down at all.
The appellant was charged, in the first Count, with fraud,
it being alleged that on 27 November 2007, at Dasso Building, Fife Street and 4th
Avenue, Bulawayo he unlawfully and with intent to defraud misrepresented to
Million Newa Ndlovu that as a registered estate agent, he was selling stand
7559/10 Tshabalala Township, Bulawayo on behalf of Sophie Mpofu the owner of it
and obtained ZWD22 million from Million Newa Ndlovu.
In the second Count, he was charged with theft of ZWD250,000=
belonging to Enisha Magaya; the allegations being that on 28 February 2001, he
had taken possession of that money, being proceeds of the sale of House Number
6527 Gwabalanda Township, Bulawayo, and, instead of handing the money over to
the owner, he converted it to his own use.
In respect of Count One, that of fraud, the State led
evidence from three witnesses; Borniface Kaseke, Sophie Mpofu and Fanuel Phiri
– none of whom were able to shed light as to whether the appellant made any
misrepresentation and to who. In short, the alleged victim, Million Newa Ndlovu,
who allegedly bought the house, was not called to testify, leaving a gap in the
evidence. Sophie Mpofu is the owner of the house and all she said was that she
did not instruct anyone to sell her house. Both Borniface Kaseke and Fanuel
Phiri did not incriminate the appellant; with Fanuel Phiri saying all that he
knew was that his grandfather's house was sold by unknown people.
On the second Count, of theft, only Elisha Magaya, the
owner of House Number 6527 Gwabalanda, Bulawayo gave evidence. All that he said
was that the house was sold, firstly, by the appellant and he then tried to
cancel that agreement before selling the house himself for the second time.
There was nothing in his evidence to suggest that the appellant converted the
money to his own use. In fact, the appellant gave an explanation as to what
happened to the purchase price, namely, that the buyer took it to his own
lawyers where he sought to enforce the agreement. There was no evidence to
rebut that assertion.
The point was made by SANDURA JA in S v Kuiper 2000 (1) ZLR
113 (S)…, in considering what the court has regards to in examining the
explanation given by an accused person;
“However, quite apart
from the effect of the further evidence adduced on appeal, I do not think that
the magistrate was justified in rejecting the appellant's version. The test to
be applied before the court rejects the explanation given by an accused person
was set out by GREENBERG J in R v Difford 1937 AD 370. At 373, the learned judge said:
'…, no onus rests on
the accused to convince the court of the truth of any explanation he gives. If
he gives an explanation, even if that explanation is improbable, the court is
not entitled to convict unless it is satisfied, not only that the explanation
is improbable but that beyond any reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is entitled to
his acquittal…,.'
Similarly, in R v M 1946 AD 1023, DAVIS AJA said the
following at 1027:
'And, I repeat, the court does not have to believe the
defence story; still less has it to believe it in all its details; it is
sufficient if it thinks that there is a reasonable possibility that it may be
substantially true.'”
The court a quo misdirected itself in assessing the
evidence in that it does not appear to have bothered to consider whether the State,
which bore the onus of proving the guilt of the appellant in respect of both
counts beyond a reasonable doubt, had proved such guilt. Quite to the contrary,
the magistrate shifted the onus of proof to the appellant for him to prove his
innocence. At page 15-16 of the record he reasoned as follows:
“Although accused pleaded not guilty to both counts in this
case, and although this has been a lengthy trial, a perusal of the record
actually reflects that this is a fairly simple straight forward case in which
the accused has failed to come up with a reasonable defence, in that, money was
paid and receipts were issued by accused's company…,.. As I have already
pointed out, this is a fairly straight forward case in which the accused has
failed to come up with a reasonable defence to both Counts; hence accused's
defence cannot stand. I accordingly find the accused guilty as charged.”
In my view, this is a very muddled thought process which is
very dangerous indeed. The appellant did not have to prove anything. It is the State
which had to prove his guilt by leading credible evidence tending to establish
all the essential elements of the offences. It is because the magistrate
misdirected his thought process that he did not bother to assess the evidence
led on behalf of the State to see if a crime was committed. To him, the moment
the appellant stood in the dock charged with the offences, he was guilty. The onus was upon him to 'come up with a
reasonable defence' failing which he was guilty as charged.
In that regard, the concession made by the State is
properly made. The conviction, in respect of both Counts, cannot stand. With it,
the attendant sentence must also go.
In the result, it is order that;
1. The conviction of the appellant on one count of fraud
and one count of theft is hereby set aside.
2. The sentences are hereby quashed.
3. In its place is substituted the verdict that
the appellant is hereby found not guilty in respect of both counts and is
accordingly acquitted.
