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 ...
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.
