S v Mlambo (524 of 2023) [2023] ZWHHC 434 (26 June 2023)

1 HH 524-23 CA 26/23 CHARAMBA MLAMBO and THE STATE HIGHCOURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE, 26 June 2023 Criminal Appeal R Chikwari, for the appellant F Kachidza, for the respondent CHIKOWERO J: 1. This is an appeal from the judgment of the Chitungwiza Magistrates Court convicting the appellant on a charge of fraud as defined in s 136 (a) and (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The appellant was sentenced to 36 months imprisonment the whole of which was suspended on conditions of good behaviour, restitution and the performance of community service. The appeal is against the conviction only. 2. Fraud is theft by deceitful means. See Tangwena v Prosecutor General SC 75/21. The requirements of the offence of fraud were set out in, among others, S v Nyambuya and Anor HH 308/16. 3. The general rule is that an appellant court should ordinarily be loath to disturb findings of fact which depend on an assessment of credibility by a trial court. However, one of the exceptions to this rule is that a court of appeal will interfere where factual findings made by the trial court are plainly wrong. This would be so, for instance, where the findings defy reason and common sense. See S v Soko SC 118/92; S v Mlambo 1994(2) ZLR 410 (S); S v Chingurume 2014(2) ZLR 260(H) and Santam BPK v Biddulph (2004) 2 All SA 23 (SCA). 4. Further, where the trial court does not assess the credibility of all the state witnesses, especially that on which the conviction was predicated, the appellate court is at large to HH 524-23 CA 26/23 apply its mind to the evidence on record and decide whether the conviction is justified. See Chikukwa v S SC 75/20. 5. It is trite that the state bears the onus to prove its case against an accused beyond reasonable doubt. The test to be applied before a trial court rejects an explanation given by an accused is worth repeating. In R v Difford 1937 AD 370 GREENBERG J puts it thus: “…..no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.” 6. We think it useful to refer also to S v Van der Meyden 1999(1) SACR 447 (W) where the court, at 448, had this to say: “The onus of proof in a criminal case is discharged by the state if the evidence established the guilty of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent. These are not separate and independent tests, but the expression of the same test viewed from the opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond a reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.” 7. With all the foregoing legal principles in mind, we turn to determine whether the conviction was safe. 8. The allegations against the appellant were very simple. In plain language, the appellant was said to have lied to the complainant that he owned a vacant piece of residential land called stand 36543 Unit G, Seke, Chitungwiza. By means of this deception, he caused the complainant to part with the sum of US$11 900 which was said to be part payment towards a purchase price of US$ 18 000 for the aforesaid piece of land. In other words, the state alleged that the appellant defrauded the complainant of the sum of US$11 900 through the ruse of selling to the latter the right and interest in the piece of land in question when the appellant knew at the time of entering into the agreement of sale (which was said to be verbal) that he did not own that piece of land. 9. The defence was equally clear and to the point. It was this. The appellant did not commit the offence. He did not enter into the alleged agreement of sale with the complainant at all. He was never in possession of the offer letter, in terms of which HH 524-23 CA 26/23 Chitungwiza Municipality purportedly offered the piece of land in question to him. He did not give the complainant that offer letter. He did not know the origins of that document (which the prosecution produced as an exhibit, through the complainant.). The appellant received the sum of US$11 900, in bits and pieces, as campaign money from the complainant. When the appellant terminated a business partnership with the complainant, the latter demanded that the former refund the campaign money. The appellant refused to do so, as the complainant had made the payments as donations to fund the appellant’s campaign to contest as a councillor for Ward 7 in Chitungwiza. Irked by the refusal, the complainant then caused the false offer letter to be forged, as well as 6 false acknowledgements of receipt of part of the purchase price. Armed with these, the complainant then manufactured the false story that the appellant had sold him the stand in question. This was the complainant’s way of endeavouring to recover the sum of US$11 900 from the appellant, hence the allegations contained in the charge. 10. We think that the conviction was not safe. 11. The trial court accepted the complainant’s testimony that he was deceived by the appellant into entering the verbal agreement of sale in respect of the piece of land in question. The assessment of the credibility of the complainant’s credibility was not thorough. The court did not take into account other material pieces of the complainant’s testimony. The trial court also omitted to consider the assessment of the credibility of the complainant in light of the evidence of other state witnesses. Further, the court was not alive to the fact that the matter was inadequately investigated by the police and poorly prosecuted. We now endeavour to demonstrate why we will interfere with the factual findings made by the trial court, all of which were grounded on the erroneous view that the complainant was a credible witness. 12. The complainant told the court that the appellant said he was selling an 800 square metre commercial stand. To prove this, so said the complainant, the appellant gave the former the offer letter addressed to the appellant by Chitungwiza Municipality. In terms of that document, which was produced as an exhibit, the municipality, on 24 September 2019, offered the appellant the residential stand number 36543 measuring approximately 1500 square metres for US$34 511-50. The stand was situated in Unit G, Seke, Chitungwiza. HH 524-23 CA 26/23 This is the piece of land which the complainant said he purchased for US$18 000. What the complainant did not explain is whether he bought an 800 square metre commercial stand, an approximately 1500 square metre residential stand or an approximately 1340 square metre residential stand. What is more, all three differently-sized pieces of land were supposed to be one and the same piece of land sold to the complainant by the appellant. What the complainant was not asked to explain and what the trial court did not comment on were the following. Was the complainant deceived into buying an 800 square metre piece of commercial land? Was he deceived into buying the residential stand number 36543 measuring approximately 1500 square metres situated in Unit G, Seke Chitungwiza (as per the offer letter)? Was he deceived into buying the residential stand number 36543 measuring approximately1340 square metres situated in Unit G, Seke, Chitungwiza ( as per the 6 acknowledgments of receipt)? Why would complainant say he received the offer letter from the appellant as proof that the appellant owned that land when his evidence is that appellant produced it as proof that he owned an 800 square metre piece of land when the document itself speaks to something entirely different, namely an approximately 1500 square metre residential stand? Considering that the alleged agreement of sale was not reduced to writing, we think that the trial court should not have found that the state had proved beyond reasonable doubt that the appellant misrepresented to the complainant that he owned residential stand number 36543 measuring approximately 1340 m2 (situate in Unit G, Seke, Chitungwiza) and through that misrepresentation caused the complainant to suffer prejudice in the sum of US$11 900 as part payment towards the purchase price of that piece of land. It is an essential requirement of an agreement of sale of an immovable property that the nature and extend of the same be identified. The oral and documentary evidence adduced by the prosecution, through the complainant, instead of resolving this aspect of the matter, threw up reasonable doubt on the very existence of the agreement of sale itself. Without proof of the agreement of sale there could not have been any basis for convicting the appellant on the charge of fraud. 13. The existence of the agreement of sale is also put into doubt by other pieces of evidence. The complainant said the purchase price was US$18 000. His manager said it was HH 524-23 CA 26/23 US$16 900. Both testified for the prosecution. The contradiction was not explained. The trial court did not comment on the contradiction at all. The same piece of land could not have been sold, in one transaction, for both US$18 000and US$16900. Despite bearing a portion wherein the addressee (who was reflected as the appellant) had to acknowledge receipt of the offer letter by filling in his name, national registration number, signature, date of receipt and cellphone number, these details were not recorded on the document. One then wonders why the trial court rejected the appellant’s explanation that he never got hold of that document and hence never handed it up to the complainant as proof that he owned the land in question. Tendai Chinyanga is a director employed by Chitungwiza Municipality. He testified, for the prosecution, that the offer letter, purportedly signed by one Mukwewa on behalf of H Sithole (the Director of Housing and Community Services), was a forgery. The piece of land did not belong to the appellant at all. It belonged to one Hebert Chiroodza. Several forged offer letters had been issued under the purported signature of Alex Mukwewa, the Acting Director of Housing and Community Services. All those matters were under police investigations. Mukwewa, a one time co-accused in the present matter, had eventually not been tried. In a nutshell, just as the state apparently accepted that the existence of Mukwewa’s forged signature was no basis for causing him to undergo trial in this matter, it had to be accepted that the mere fact that the forged offer letter captured the appellant as the purported recepient of that document did not translate to cogent evidence that he received that document and handed it up to the complainant. We also do not see any logic in the appellant purchasing the stand in question for US$34 511-50 and two years later selling it to the complainant for US$18 000 or US$16 900, which would be for roughly half the price reflected on the offer letter. The complainant, a businessman, did not tell the trial court that he queried this aspect with the appellant. We have already recorded that his evidence leaves one at sea on what exactly it is by way of the particular piece of land that he purchased. The trial court also accepted that the complainant parted with as such as US$11 900 as purchase price of a piece of land without such an agreement being reduced to writing. It accepted the complainant’s testimony that the parties had agreed that the agreement of sale would be documented once the complainant had paid an amount of HH 524-23 CA 26/23 US$13 000. The acceptance of such testimony does not make sense. US$11 900 is not a small amount. The purchase of a commercial piece of land is no small matter. So is the purchase of a residential piece of land in an urban area. Without downplaying the significance of receipts as proof of payment of part of the purchase price of a residential piece of land in an urban area, we think that it would be to put the cart before the horse to believe that the complainant saw sense in holding on to not one but 6 purported receipts as proof of part payment of the purchase price without realising that, as a business person, he needed to put first things first. If he thought that those purported receipts were vital, it seems to us that he clearly appreciated that what was even more vital was a written agreement of sale because it would be such document that would easily prove not only the existence of the agreement but also its terms and conditions in the event of a dispute. 14. The court should not have relied on the 6 acknowledgements of receipt. The appellant’s explanation was that his signature was forged on all those documents. Right from his defence outline, he made this position clear. We observe in passing that all the signatures attributed to him do not appear to resemble each other. Because his explanation was that somebody forged signatures above his name, the prosecution should have led evidence from a questioned document examiner. Such evidence would have either destroyed his defence or confirmed it. We do not know what the position would have been if that material evidence had been adduced. This to us means the appellant’s explanation that he did not affix his signature on the acknowledgements of receipt cannot be called improbable let alone manifestly false. That explanation was not disproved. There is a reasonable possibility that the explanation might be true. The court should have resolved the reasonable doubt in favour of the appellant. 15. We record also that on all 6 documents nobody signed as the purported seller’s witness, despite the documents making provision for such signature. Further, all 6 documents told lies about themselves. The Commissioner of Oaths, whoever he was, commissioned those documents before anybody else had appended their signatures thereon. He recorded false dates of receipt of the purported portions of the purchase price by the complainant. It was common cause that the documents, although prepared on the same HH 524-23 CA 26/23 date by Austin Banda, bore different dates. Banda himself did not witness the payment of those amounts. He disowned portions of his statement, recorded at the police station, wherein he claimed to have signed the receipts as a commissioner of oaths in the presence of the complainant and the complainant’s witness. In court, he said the person who stamped the documents as a commissioner of oaths was one R Chingandu. It was Chingandu who signed as Commissioner of Oaths. Chingandu, claimed Banda, was in Australia when the trial was underway. Chingandu did not testify for the prosecution. The significance of this omission is this. Banda claimed that the appellant signed the 6 acknowledgement of receipts in his presence. He claimed that he prepared the documents on the instructions of the appellant. All this the appellant disputed. Banda himself had been arrested for impersonating a commissioner of oaths in respect of this same matter. Had Chingandu testified, his evidence would have shed light on whether it was him who signed and stamped the 6 receipts as a commissioner of oaths and whether he saw the appellant signing those documents. As the record stands, the only person who claimed to have seen the appellant signing the acknowledgement of receipt of part payment of the purchase price was Banda. The court found that Banda had acted in an unscrupulous manner in that he accepted that the complainant signed the documents in the absence of the appellant and that the purported commissioner of oaths had already stamped and signed the documents before anyone else had signed them. The appellant explained that Banda knew the former’s particulars because the latter had been availing typing services to the appellant for years. The mere fact that the appellant was a long standing client of Banda could not be a reason for finding that the appellant instructed Banda to draw up the acknowledgments of receipt and signed them in the presence of Banda in the absence of evidence of a questioned document examiner. Indeed, the court itself found that Banda was an unscrupulous witness. This dovetailed with the appellant’s explanation that Banda had been instructed and paid by the complainant to prepare the acknowledgements of receipt. Banda had been induced by such payment to act as he did. That he had been compromised was evidenced by his arrest for impersonating a commissioner of oaths and denial, without explanation, of portions of the statement made by him at the police station. We think that once the court found that Banda was an unscrupulous witness it HH 524-23 CA 26/23 should not have gone on to rely on his evidence in so far as it incriminated the appellant. An unscrupulous witness is unworthy of belief. He could not be a credible witness, particularly where his testimony could have been tested against expert evidence which the prosecution chose not to lead. 16. We do not share the learned magistrate’s view that the evidence led by the appellant gave a different complexion to his defence. The detail referred to was that the complainant concorted the allegations because the appellant, after having received funding from the complainant to campaign as a candidate for councillor ward 7, then decided not to contest for such position opting to campaign for the position of a member of the House of Assembly. The appellant explained that this riled the complainant whose business interests would have been advanced had the appellant retained an interest to contest for the position of councillor Ward 7 Chitungwiza. We observe that in all other respects the appellant’s position remained, throughout, as set out in the defence outline. It was not for the appellant to prove that he was innocent. The boot was on the other foot. The deficiencies in the case for the prosecution, discussed elsewhere above, are such that it was unsafe to convict the appellant. Even on its own, the evidence adduced by the prosecution was, in our estimation, wholly unreliable, inadequate and manifestly contradictory. The inadequacies and contradictions went to the root of the matter. The result is that the decision to convict cannot be allowed to stand. 17. In the result it is ordered that: 1. The appeal be and is allowed. 2. The conviction is quashed and the sentence set aside. The following is substituted “the accused is found not guilty and is acquitted” CHIKOWERO J:…………………………….. ZHOU J:……………………………………… I agree Chikwari and Company, appellant’s legal practitioners The National Prosecuting Authority, respondent’s legal practitioners HH 524-23 CA 26/23