The following facts were established before the magistrate.
The appellant is a businessman of some fifteen (15) years
standing. He is the owner of a company called Defiant Property Management, a
private company duly registered as such under the laws of Zimbabwe. The
appellant, through his company, acts as a middleman in “getting people ...
The following facts were established before the magistrate.
The appellant is a businessman of some fifteen (15) years
standing. He is the owner of a company called Defiant Property Management, a
private company duly registered as such under the laws of Zimbabwe. The
appellant, through his company, acts as a middleman in “getting people selling
property together.”
He is not a registered estate agent.
Sometime in January 2008, the appellant caused an
advertisement to be flighted in the Chronicle newspaper in respect of an
immovable property known as 4051 Nketa Drive, Bulawayo. The complainant, one
Doris Dewa, responded to the advert. After viewing the property in question,
the complainant made arrangements with the appellant to meet with the Seller on
24 January 2008 at the appellant's business premises.
The parties duly met as scheduled.
Present at the premises of the appellant's company was one
Mpilo Nyathi (Nyathi) who identified herself as Magdalene Sibanda, the Seller.
An identity document and an original Deed of Transfer bearing the names of the
said Magdalene Sibanda were exhibited to the complainant. The complainant made
an offer for the property and on 28 January 2008 the parties concluded an Agreement
of Sale for the property. The Seller was
identified on the Agreement of Sale as Magdalene Sibanda. Upon signing of the Agreement,
the complainant paid the purchase price in full and the title deeds were
surrendered to her.
The appellant advised the parties to engage lawyers for
purposes of effecting transfer of the property to the complainant. Thereafter,
the complainant attempted, on several occasions, to contact Mpilo Nyathi to
have the property transferred into her name - and without success. She then
visited the property in question at which juncture she met the owner of the
property, one Magdalene Sibanda who denied any knowledge of the transaction.
Upon realizing that she had been duped she made a report to the police leading
to the arrest of the appellant and Mpilo Nyathi on allegations of fraud.
Subsequently, the two were jointly charged in the Magistrates
Court with one count of fraud as defined in section 136(a) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23].
At their initial arraignment before the magistrate, Mpilo
Nyathi pleaded guilty to the offence. The appellant denied the charge. The
trials were separated and Mpilo Nyathi was duly convicted on her plea of guilt.
She was sentenced to a term of imprisonment for 36 months, with 6 months
suspended on conditions of good behaviour.
After a trial, in which Mpilo Nyathi appeared as a witness
on behalf of the prosecution, the appellant was duly convicted on the charge of
fraud. The magistrate considered that the offence merited a sentence beyond his
jurisdictional limits and referred the matter to the Prosecutor General for his
decision on the question of sentence in terms of section 54(2) of the
Magistrates Court Act [Chapter 7:10], which reads in relevant part:
“54 Stopping and conversion of
trials
(1)…,.
(2) If, upon the conviction of an accused person upon
summary trial or trial on remittal by the Prosecutor-General, before sentence
is passed, the magistrate is of the opinion that a sentence in excess of his
jurisdiction is justified, he may adjourn the case and remand the person
convicted and submit a report to the Prosecutor-General, together with a copy
of the record of the proceedings in the case.”
Following upon a consideration of the prejudice involved in
the offence, the Attorney-General (now Prosecutor General) recommended that the
matter be transferred to the High Court for sentence in accordance with the
provisions of section 225(1)(b) of the Criminal Procedure and Evidence Act
[Chapter 9:07].
On 25 January 2010, the appellant appeared before a judge
of the High Court in Bulawayo for sentence.
His conviction on the charge of fraud was duly confirmed and he was
sentenced to imprisonment for a period of seven years, of which one year was
suspended on conditions of good behaviour.
He has appealed, with leave, to this Court
against both conviction and sentence.
