S v Predom Inv. (Pvt) Ltd & Ors (REF CRB R 284 of 2012; REF CRB R 285 of 2012) [2015] ZWHHC 32 (15 January 2015)

1 HH 32-15 CA 171/13 Ref Case No. CRB No. R284-5/12 PREDOM INVESTMENTS (PVT) LIMITED and CHARLES KATEWERA and PARTSON MUNAKU JUNGWE versus THE STATE HIGH COURT OF ZIMBABWE BHUNU AND TAGU JJ HARARE, 5 November 2014 and 16 January 2015 Criminal Appeal Advocate O. Takaindisa, for appellants Mr R. Chikosha, for respondent TAGU J: The appellants were charged, and convicted after a contested trial, for contravening s 113 (2) (d) of the Criminal Law (Codification and Reform) Act [Cap 9:23], as read with s 277 (3) of the Code (theft of trust property). They were sentenced as follows- “Accused 1 is sentenced to pay a fine of US$ 15 000.00 or in default a writ of execution against its property. In addition accused 1 is ordered to pay restitution to the complainant of US$ 42 154.39 through clerk of court Harare on or before 31st August 2013. Accused 2 and 3 are each sentenced to serve 7 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition during that period accused does not commit any offence of which dishonesty is an element to which if he is convicted will be sentenced to imprisonment without an option of a fine. Of the remaining 5 years imprisonment 3 years imprisonment is suspended on condition each accused restitutes US$ 42 154.39 to complainant through clerk of court Harare on or before 31st August 2013”. The bulk of the facts in this case are common cause. The undisputed facts are that the first appellant is a Zimbabwean registered company situated at 12 Ridgeway North, Highlands, Harare. Appellants 2 and 3 are both Directors of appellant 1. Appellant 2 is an uncle to the complainant. On the 9th of October 2009, the complainant who was based in Austria, and did not have a local bank account in Zimbabwe, requested and was allowed by the appellants to deposit her money into their company’s Standard Chartered Bank account HH 32-15 CA 171/13 Ref Case No. CRB No. R284-5/12 number 090318080. The complainant then deposited $ 165 877.57 for safe keeping. During the period extending from October 2009 to November 2011, the appellants withdrew a total of US$ 126 463.17 without the complainant’s approval. Nothing was recovered. The appellants are appealing against both conviction and sentence handed down by the Regional Magistrates court on the 11th February 2013. The appeal is premised on a number of grounds. At the hearing of the appeal, Advocate Takaindisa, for the appellants, applied that the respondent be barred from making submissions on the basis that the respondent had failed to file his heads of argument timeously. The respondent’s heads were filed out of time and not in compliance with the rules of this Honourable Court. Advocate Takaindisa referred us to the cases of AG v Lafleur and Anor 1998 (1) ZLR 520, S v Sibanda 2001 (2) ZLR 514 on the need to strictly adhere to time limits. Mr Chikosha, for the respondent confirmed that heads of argument were indeed filed late on the 29th of July 2014. However, he gave a reasonable explanation as to why the heads were filed out of time. We were of the unanimous view that it was in the interests of justice that non-compliance with the rules be condoned and that the matter be heard on the merits. Mr Chikosha then raised a point in limine, that the appellants’ notice and grounds of appeal did not meet the requirements of r 22 (1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules 1979. He submitted that the notice and grounds of appeal were vague, and did not set out clearly and specifically the grounds of the appeal. He referred us to the case of S v Thomas Madeyi appeal case number 24 /13. Advocate Takaindisa conceded that the notice and grounds of appeal indeed did not comply with the rules, and that they leave a lot to desired. Advocate Takaindisa, further conceded that the language used was lax. He however, abandoned several of the grounds of appeal and urged the court to hear the appeal on the ground that the money was not held in trust. He submitted that the money in question was given to the appellants to keep on her behalf and then return it back on demand. He further, submitted that the three appellants acted as complainant’s bankers. Hence their failure to return the money did not amount to a criminal liability, but a civil liability. On sentence he submitted that the appellants should have been given the option to perform community service. HH 32-15 CA 171/13 Ref Case No. CRB No. R284-5/12 However, the respondent supported the conviction and sentence imposed by the court a quo. Mr Chikosha maintained that this was trust money which was to be kept for safekeeping. As regards the conviction the sole issue to be determined is whether or not the money was trust property as defined in the Act. Trust Property is defined in s 112 and 113 of the Criminal Law (Codification and Reform) Act [Cap 9:23] 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 a specific person; or (c) deal with the property in a particular way; but does not include property received on terms expressly or impliedly stipulating that- (i) the recipient is entitled to use the property as his or her own, and (ii) there would only be a debtor and creditor relationship between the parties” Section 113 (2) says- “(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)…………………… (c) uses the property or part of it for a purpose other than the purpose for which he or she is obliged to use it; or (d) converts the property or part of it to his or her own use.” In casu, the reading of the record shows that the appellants were given the money to hold in trust on behalf of the complainant and to account for it. They failed to account for the money when the complainant wanted it. They were not to use it without her consent. It is not correct to say that the appellants held the money as the complainant’s bankers, and could use it as they pleased. Perusal of the record shows that when the appellants wanted to use part of the complainant’s money they requested for it and the complainant gave them the permission to use US$ 24 725.00 to buy Macadamia nuts for resale and she gained interest in the sum of US$ 5000.00. When the appellants used the residue of US$ 126 463.17 they did so without HH 32-15 CA 171/13 Ref Case No. CRB No. R284-5/12 any express permission from the complainant. The money was clearly Trust Property which they had to account for, but they squandered it without the complainant’s consent. The appellants therefore breached the trust that had been bestowed on them. In our view all the appellants committed the offence as alleged. The lower court did not err in convicting the appellants as it did. The conviction is therefore proper in the circumstances. As regards the sentence, it is trite law that sentencing is, by and large, the discretion of the sentencing court. The appeal court has invariably limited powers which enable it to interfere with the sentence the trial court will have imposed. Its powers in this regard can only be exercised where, ex-facie the record, the court a quo has misdirected itself or has imposed a sentence which is manifestly disproportionate to the crime committed. In casu, an amount of US$ 126 463.17 was stolen and nothing was recovered. In our view the sentence does not induce a sense of shock. Community service is only reserved for non-serious offences. Here there was some pre-planning. There was an abuse of trust, and whether there is a breach of trust, one cannot be treated with kid gloves. The sentence imposed upon the appellants, in our view, fits both the offence and the offenders. We will, therefore, not disturb it. The appellants’ appeal against both conviction and sentence fails. It is, in the result, ordered as follows:- That the appeal be and is hereby dismissed in its entirety. BHUNU J agrees …………………………… P. Chiutsi Legal Practitioners, appellants’ legal practitioners Prosecutor-General’s Office, respondent’s legal practitioners