Criminal
Review
MAKONESE
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
9:23). The brief allegations are that 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 (0); 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 the
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.
Makonese
J..................................................................
Takuva
J
agrees...............................................................
