S v Munhangu (CA 151 of 2013; HH 83 of 2016; Ref Chivhu CRB C 43 of 2013) [2016] ZWHHC 83 (27 January 2016)

1 HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 TAFADZWA MUNHANGU versus THE STATE HIGH COURT OF ZIMBABWE CHATUKUTA and MANGOTA JJ HARARE, 20 July, 2015 and 27 January, 2016 Criminal appeal D Foroma, for the appellant I Muchini, for the respondent MANGOTA J: The appellant was convicted, on his own guilty plea, of Fraud as defined in s 136 of the Criminal Law [Codification and Reform] Act, [Chapter 9:23]. He was sentenced to 5 years imprisonment. Three years of that sentence were suspended on the following two conditions: (a) one year imprisonment was suspended for 3 years on condition of future good conduct- and (b) two years imprisonment were suspended on condition that he restitutes the complainant in the sum of $4000. The state allegations were that on 3 December 2012 and at Conview Service Station in Chivhu the appellant, with intent to deceive, misrepresented to one Leonard Farayi Mawuto that he was selling House Number 803, Northwood, Chivhu. The house did not belong to the appellant. The appellant intended to cause the complainant to act upon the misrepresentation to the latter’s prejudice. The complainant suffered prejudice in the sum of $4 000-00. The sum was not recovered. The appellant appealed against conviction and sentence. His grounds of appeal were that: HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 (i) the trial magistrate erred in convicting him of fraud when it was not proved beyond reasonable doubt that he was not the owner of the house that had been sold to the complainant; (ii) the trial magistrate did not properly canvass the essential elements of the offence with him and, in the premise, the magistrate erred; (iii) if the magistrate had properly canvassed the essential elements of the offence with him, the magistrate would have realised that the house belonged to the appellant even though the latter person did not hold any title deed for the house. (iv) the state failed to prove that he intended to deceive, and cause prejudice to, the complainant – and (v) the sentence which the court a quo imposed was so severe as to induce a sense of shock considering all the matters which operated in his favour. He moved the court to quash the conviction and set aside the sentence which had been imposed. He prayed that, in the event of the conviction being upheld, the sentence be set aside and substituted with that of community service. The respondent opposed the appeal. It submitted that the appellant was properly convicted and sentenced. It stated that his admission of the essential elements of the offence was unequivocal. It insisted that the sentence which was imposed was commensurate with the offence which the appellant committed as well as his personal circumstances. It moved the court to dismiss the appeal. Whether or not the trial magistrate erred when he convicted the appellant of fraud does depend on the propriety or otherwise of the proceedings which the court a quo conducted. The proceedings run in the following order: On 28 January, 2013 the appellant was arraigned before the court on a charge of fraud. The court a quo put the charge to the appellant. He pleaded guilty. The court recorded his plea. It proceeded to conduct the trial of the appellant in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The section makes reference to the procedure which a court is enjoined to adopt and follow when an unlegally represented accused who appears before it tenders a plea of guilty to a charge. It was on the strength of the cited section that the court a quo allowed the facts which constituted the elements of the offence to be read out to the appellant for the latter’s benefit. HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 After those had been read out, the trial court inquired from the appellant if the facts were true and correct. He answered in the affirmative. It inquired further if he had any additions or subtractions which he wished to make. He said he had none. The court proceeded to put to the appellant all the essential elements of the offence, each in turn. He admitted all of them without any qualification except one. The element which the appellant appeared to have qualified was that which related to whether or not he agreed with the proposition that the complainant was prejudiced in the sum of $4000-00. He appeared to have responded to the question which related to that element in the negative. In his comments to the appellant’s grounds of appeal against conviction, the trial magistrate stated that the apparent qualification to the element did not emanate from the appellant. He said the apparent qualification was his own mistake. He stated that he recorded a “no” instead of a “yes” when he took down the appellant’s answer to the question which he (the magistrate) had posed. He said the answer which the appellant gave to the question which related to the element was not in the negative. He said it was in the affirmative. He referred us to the statement which the appellant gave during mitigation. He stated that the appellant’s statement supported the position that the appellant intended to deceive as well as cause prejudice to the complainant. The statement which the appellant made during his mitigation reads as follows: “I committed the offence because I wanted to realize some money. I used the complainant’s money to pay for my projects. I can repay the complainant’s money within weeks”. It is evident from the contents of the statement as read with the magistrate’s explanation that the appellant’s response to the question which related to the element in issue was not in the negative. It was in the affirmative. The magistrate, we are satisfied, erroneously recorded the answer as a no instead of a yes to the element. The complainant parted with his $4 000 on the basis of the appellant’s misrepresentation to him. He suffered actual, and not potential, prejudice as a result thereof. It cannot, under the circumstances, be suggested that the appellant did not want to cause prejudice to him. The above clarification of the element which the appellant appeared to have qualified completes the court a quo’s record of proceedings. The appellant submitted that the trial HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 court did not properly canvass the elements of the offence with him. He said, if the court had done so, it would have realised that the house belonged to him. He stated, in the same breadth, that he did not hold any title deed to the house. The respondent’s position, with which we are in agreement, was that the magistrate properly canvassed the elements of the offence with the appellant. It insisted, and correctly so, that the conviction of the appellant was above board. The appellant, it is evident, admitted all the elements of the offence without any qualification. He admitted them freely and voluntarily. His admission of each element was unequivocal. The charge on the basis of which the appellant was arraigned before the court was clear. It was devoid of any ambiguity. It contained all the elements of the crime of fraud. The appellant understood the charge, its meaning and import when it was put to him. He understood the elements of the crime as they appeared in the charge. He admitted all of them. His was a genuine admission of the charge and the essential elements of the offence as contained in the charge. He cannot, therefore, be heard to say the trial court did not properly canvass the elements of the offence with him. The court a quo canvassed all elements of the offence with him, each in turn. The appellant’s claim which was to the effect that, although he did not hold any title deed to the house, the house belonged to him cannot hold. It was, in our view, a baseless argument for him to have stated as he did. Possession of the title deed of the house by him was, or is, the most evident way by means of which he would have proved ownership of the house. Nothing short of that sufficed or suffices for purposes of proving ownership in such an immovable property as a house. After his conviction and sentence, the appellant made what may be described as a two-in-one application. He applied to have the matter referred to the High Court on review for the quashing of his conviction as well as having the sentence which the trial court imposed upon him set aside. The application was premised on facts that he alleged were new and would persuade the court that he had been improperly convicted. He also applied for bail pending his appeal against conviction and sentence. In so far as his first leg of the application was concerned, the appellant stated, through counsel, as follows: HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 “I hope that on the record you have a notice of appeal against conviction and sentence. The application I am going to make before you is in the alternative. First of all, I propose to bring to the court’s attention fact (sic) which I submit were not before the court when the matter was dealt with as a plea. The facts would indicate that the accused did not commit the offence. The intention being to get the court if it accepts the new facts to appreciate that indeed appropriate (sic) did not commit the offence of fraud for which he was convicted and sentenced. If the court does accept the facts (sic) that applicant was not guilty of the offence the court will do one of (sic) things. If the review of the matter has been completed then the court would have to address the High Court or bring those facts to the attention of the High Court so that the confirmation certificate would be withdrawn and the confirmation (sic) be quashed or in the event that the review process has not been completed then the court will bring those facts to the reviewing Judge so that the reviewing Judge will not confirm the proceedings”. Counsel for the appellant cited Professor G Feltoe as authority for the application which he was making before the court a quo. He referred the trial magistrate to the learned author’s Defender’s Handbook p 51 in the mentioned regard. He proceeded and stated as follows: “When I was instructed to act in this matter I had on one occasion had to interview the mother. It surfaced that Mrs Munhangu who is the mother of the accused is widowed and the administration of the estate was completed and herself and 3 sons were awarded in the estate a farm left by the deceased. The farm was transferred into the names of the mother and the 4 (sic) sons. One of the sons is the accused. When I asked whether the house which had purportedly been sold by the accused was part of the estate she said no. She said that the house was given to the applicant by his father during the lifetime of the father. The house, therefore, was donated to the son. I then asked the mother if there were papers to that effect and she said that the deceased’s sisters and deceased’s eldest son Torevei Munhangu witnessed this donation……. I was also shown an affidavit by Torevei Munhangu in which he indicated that he was the heir and that accused was given stand number 803, Northwood, Chivhu at a family gathering in August 1997. It is my humble submission that the facts clearly disclose that stand 803 was a property which belonged to applicant’s father. The facts disclose that the stand was given to the applicant by his father in August, 1997. The facts negate criminal liability by the applicant in the agreement of sale. The summary jurisdiction does make the accusation that applicant sold by misrepresentation the house in question which did not belong to him when he knew in fact that the house did not belong to him. The house did belong to the applicant even though he did not hold title deed for the said house” (emphasis added) Counsel for the appellant produced an affidavit which Torevei Munhangu deposed to on 20 March, 2007. The affidavit appears at p 24 of the record. It, in essence, was to the effect that the appellant was given the house on stand 803 Northwood, Chivhu by his late father. It said the donation took place at a family gathering which occurred in August, 1997. The affidavit was witnessed by one Enitah Mwadini and one Peter Makowa. HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 The state opposed the application for the appellant to have his conviction quashed and the sentence set aside. It submitted, before the court a quo, that as an adult married person the appellant knew that he was not the owner of the house. It said the answers which he gave during the recording of the plea were clear and unequivocal. It stated that the appellant informed the court a quo that, when he sold the house, he knew that he was not its owner. It expressed surprise to the fact that the matter which pertained to the donation remained a secret until the appellant was convicted. It insisted that the issue of the donation was an after- thought on the part of the appellant. It submitted that, if the donation was genuine, the appellant would have informed the court a quo of that fact when he appeared before it. It stated that the issue of the donation was a fabrication which aimed at rescuing the appellant from incarceration. The court a quo found, and in our view correctly so, that the appellant was not able to show that the house which he sold to the complainant belonged to him. Its findings appear to have been based on an analysis of documentary evidence which the appellant placed before it during his application. The affidavit which he produced as proof of the fact that the house was a donation which his late father made to him when he was still living had more questions than answers to it. The appellant’s brother, Torevei Munhangu, deposed to the affidavit. The circumstances under which the affidavit came into existence were not explained. The family gathering at which the house was allegedly donated to the appellant occurred in August 1997. The affidavit was deposed to some ten or so years after the alleged event. The delay (of ten years) between the two events was not explained. The purpose which the affidavit was meant to serve was left to conjecture. Some contents of the affidavit were not in conformity with a document of that form, nature and substance. An affidavit proper is never witnessed by anyone. The signature of the deponent to it and that of the person who commissions it suffice for the purpose of showing that its contents as deposed to by the deponent are, to his or her knowledge, true and correct. Torevei Munhangu’s affidavit was witnessed by two persons. What the two were witnessing to remains a matter for conjecture. They would not have witnessed the alleged donation of the house to the appellant. It was not suggested that the two persons were among the family members who allegedly attended the gathering in August 1997. The affidavit, HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 therefore, remains a document which is difficult to comprehend. It was certainly not proof of the fact that the house which the appellant sold to the complainant was a donation to him from his late father. The respondent submitted that the affidavit was a fabrication which was meant to rescue the appellant from incarceration. Its assertions cannot be said to be far-fetched in the circumstances of this case. According to the Deed of Transfer which the appellant filed with the court a quo during the application, the appellant’s father died on 24 December 1997. He died intestate. He owned Wonderkroon Farm which is situated in the District of Charter. The farm measures 428.2490 in extent. The farm which was the appellant’s father’s immovable property was, on 2 January 2004, transferred into the names of the deceased’s wife and his children, the appellant included. The farm constituted the inheritance of the deceased’s surviving spouse and his children. The appellant did not tell the court a quo, or ourselves, why the house which is the subject of this appeal was not transferred into his name when the farm was transferred into his mother’s name as well as into the names of his siblings and him. He did not advance any reason as to why the house was not transferred into his name when his father was still living. It is our view that, if the house was donated to him as he suggested to us, the probabilities of the matter are that it would have been transferred to him and he would, by now, be holding title deed to the same. It is improbable that the house was donated to him. The appellant’s story which was to the effect that he had limited rights to the house could not hold. He did not inform the court a quo that he had such rights. There was no stage that he ever told the trial court, or anyone else for that matter, that he could transfer such rights, if he had them, to the complainant. He did not mention that matter during the recording of his plea. The probabilities of the matter are that he did not have such rights and he could not transfer such to the complainant. All what he stated in the proceedings of the court a quo was his intention to repay the complainant’s money and nothing more than that. We are, in view of the foregoing observed matters, satisfied that the appellant defrauded the complaint of the latter’s $ 4000-00. He had no plausible explanation for the manner in which he caused the complainant to part with his money. He stated, in his HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 mitigation, that he committed the offence because he wanted to realise some money. He said he used the complainant’s money to pay for his projects. He offered to repay the money to the complainant. We are, satisfied, as the court a quo was, that the appellant was properly convicted on his own plea. His appeal against conviction is devoid of merit. The conviction is, therefore, confirmed. The appellant’s appeal against sentence was premised on the claim that the sentence was so excessive as to induce a sense of shock. He moved the court to set it aside and substitute it with that of community service which, he said, should be wholly suspended in lieu of the sentence which he served before his release on bail. The respondent made reference to the court a quo’s record of proceedings. It submitted that the trial court properly balanced what favoured, and what militated against, the appellant. It insisted that the appellant’s aggravatory features outweighed his mitigatory circumstances. It stated that the sentence which the court a quo imposed was commensurate with the offence which the appellant committed. The appellant, it is noted, did not allude to any matter which showed that the trial court fell into error or that it misdirected itself, when it assessed the sentence which it imposed upon him. All he said was that the sentence was so harsh as to induce a sense of shock. The appellant, we observed, committed a very serious offence. He defrauded an unsuspecting person of the latter’s money. The sum which he stole through deceit was very substantial. He made a commitment to the court a quo to pay the money back within weeks of the sentence which had been imposed. There is, however, no evidence that he lived up to his word in that regard. The probabilities of the matter are that he has paid nothing from the date that he made the commitment to-date. There is no doubt that what militated against him outweighed what favoured him with a very wide margin. The offence which he committed is not only very serious but it is also regarded as such by both the courts and the Legislature. Society should rid itself of such persons as the appellant who, through deceit, prey upon unsuspecting members of this country’s population. The sentence which the court a quo imposed is not harsh at all. We will not, therefore, disturb it. HH 83-16 CA 151/13 Ref Case No. Chivhu CRB C43/13 The appellant’s appeal against both conviction and sentence was devoid of merit. It is, in the premise, dismissed in toto. CHATUKUTA J agrees ………………………. Sawyer & Mkushi, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners