I am amazed by the reasoning of the trial magistrate in
this matter.
The mind boggles why a lot of time and resources were
wasted in this case by embarking on a trial when the accused was clearly
pleading guilty to the charge. To make matters worse, the trial magistrate
decided to convict the accused on a charge or offence which is not even a
permissible verdict. The faulty and warped reasoning by the trial magistrate is
that since theft entails an element of dishonesty it would stand to reason that
fraud which also entails an element of dishonesty is a permissible verdict on a
charge of theft.
This is in total disregard of the provisions of the Fourth
Schedule of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The accused was arraigned before the magistrate sitting at
Beit Bridge facing the charge of theft [of trust property] as defined in section
113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The brief facts of the case are as follows;
The accused was given US$3,000= by the complainant in order
to convert the whole amount into South African currency (undoubtedly on the
black market). The accused proceeded to convert a total of US$2,650= to his own
use and only gave back to the complainant US$350=. The accused's explanation is
that the accused had had a shortfall at his workplace and decided to use the
complainant's money to cover up for this shortfall with the misplaced hope that
the accused would later on raise the money and pay back the complainant.
After the accused had given such a clear explanation, the
trial court, in its wisdom or lack thereof, believed that the accused was
proffering a defence to the charge and proceeded to conduct a trial! I am
surprised that the trial court discerned any facts in dispute worthy to be
ventilated through a trial process or procedure.
Section 113(2) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] provides as follows;
“113. Theft
(1) …,. Irrelevant.
(2) Subject to subsection (3), a person shall also be
guilty of theft if he or she holds trust property and, in breach of the terms
under which it is so held, he or she intentionally –
(a) Omits to account or accounts incorrectly for the
property; or
(b) Hands the property or part of it over to a person other
than the person to whom he or she is obliged to hand it over; or
(c) Converts the property or part of it to his or her own
use.”…,.
From the facts of the case, the accused clearly converted
the complainant's US$2,650= to his own use.
In terms of section 2 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23], trust property is defined as follows;
“'trust property' means property held, whether under a deed
of trust or by agreement or under any enactment, on terms requiring the
holder to do any or all of the following –
(a) Hold the property on behalf of another person or
account for it to another person; or
(b) Hand the property over to a specific person; or
(c) Deal with the property in a particular way;”…,.
The trial magistrate simply failed to grasp these simple
and clear provisions and misdirected himself or herself that the essential
elements of the offence had not been proved, worse still that the accused was
not admitting to the charge. Reduced to its bare bones, the facts of the matter
are that the accused was given US$3,000= by the complainant and the agreement
was for the accused to, in turn, hand over to the complainant the equivalent in
South African rand. The accused failed to do so but converted US$2,650= to his
own use to cover up for a shortfall at his workplace.
The trial court clearly misdirected itself by failing to
appreciate this fact.
The other misdirection by the court a quo is its assertion
that the offence of fraud, as defined in section 136 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] is a permissible verdict to the
charge of theft as defined in section 113 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23].
Again, the Fourth Schedule of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] is clear in that regard. Fraud is
not one of the permissible verdicts.
In the circumstances, it was improper to convict the
accused of the offence of fraud, as defined in section 136 of the Criminal Code
[Chapter 9:23] which had not even been charged in the alternative.
The facts of the matter, which are common cause, are that
the accused breached section 113(2) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23]. Accordingly, the verdict by the court a quo of “Not
Guilty of Theft of Trust Property and found guilty of fraud” is set aside and
substituted with the following;
“Guilty as charged or of contravening s113(2) of the
Criminal Law (Codification and Reform) Act [Cap 9:23].”…,.
The accused should be called and be advised of
the altered verdict.
