S v Kambasha & Anor (CA 270 of 2015; HH 36 of 2017) [2017] ZWHHC 36 (25 January 2017)

S v Kambasha & Anor (CA 270 of 2015; HH 36 of 2017) [2017] ZWHHC 36 (25 January 2017)

The relationship between the parties was contractual and debtor/creditor in nature; the funds advanced did not constitute trust property under the relevant criminal statute; the essential elements of theft of trust property were not met; the matter should have been pursued as a civil claim for breach of contract.

Citation
[2017] ZWHHC 36
Parties
Appellant: Brian Tarisai Kambasha; Appellant: Hemingworth Cartwright (Pvt) Ltd; Respondent: The State
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
25 January 2017
Case Number
CA 270 of 2015 ; HH 36 of 2017
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
Appeal allowed; convictions quashed; appellants acquitted.
Legal Topics
Theft of Trust Property, Debtor Creditor Relationship, Breach of Contract, Elements of Theft
Source Language
English
Criminal Law Theft of Trust Property Debtor Creditor Relationship Breach of Contract Elements of Theft

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Parties

Brian Tarisai Kambasha

Appellant

Hemingworth Cartwright (Pvt) Ltd

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the relationship between the parties was debtor/creditor or involved trust property
  2. 2 Whether the essential elements of theft of trust property were met
  3. 3 Whether the trial court was prejudiced against the appellants

Ratio Decidendi

The relationship between the parties was contractual and debtor/creditor in nature; the funds advanced did not constitute trust property under the relevant criminal statute; the essential elements of theft of trust property were not met; the matter should have been pursued as a civil claim for breach of contract.

Court Disposition

Appeal allowed; convictions quashed; appellants acquitted.

Orders

  • The convictions against both accuseds are quashed and the sentences are set aside.
  • Both accuseds are found not guilty and are acquitted.