State v Kalavina and Others (437 of 2025) [2025] ZWHHC 437 (18 July 2025)

1 HH 437 - 25 HCH ACC 47/24 THE STATE versus LUKE KALAVINA and ROMEO TAPIWA MUPAMAONDE and ALFRED MAKAMA and MARVIN TAFADZWA MATIMA and MARLOSHAC INVESTMENTS (PVT) LTD HIGH COURT OF ZIMBABWE CHIKOWERO J HARARE; 8 & 18 July 2025 Assessors: A H Mhandu Mr Mpofu Sentencing Judgment W Mabhaudhi, for the State D Sheshe, for the 1st and 3rd offenders F Murisi and S Kufandada, for the 2nd offender M Mangwiro, for the 4th and 5th offenders CHIKOWERO J: 1) The offenders were indicted for trial on four counts of fraud as defined in s 136(a) and (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”) and one count of money laundering as defined in s8(1)(a)(b) of the Money Laundering and proceeds of Crime Act [Chapter 9:24]. 2) The fraud charges were preferred as counts 1, 3, 4 and 5 with the money laundering charged as count 2. 3) The offenders pleaded not guilty to all the counts. At the conclusion of the trial the following verdicts were returned: HH 437 - 25 HCH ACC 47/24 Count 1 Accused 1: Not Guilty and Acquitted Accused 2 – 5: Each: Guilty as charged Count 2 Accused 1 – 5: Each: Not Guilty and Acquitted Count 3 Accused 1 – 3: Each: Not Guilty and Acquitted of fraud but guilty of the permissible verdict of theft. Accused 4 and 5: Each: Not Guilty and Acquitted Count 4 Accused 1 – 5: Each: Guilty as charged Count 5 Accused 1 – 3: Each: Not Guilty and Acquitted of fraud but Guilty of the Accused 4 and 5: Each: Not Guilty and Acquitted permissible verdict of theft 4) At the material time the first, second and third offenders were employed by Hurungwe Rural District Council (“Council”) as the Chief Executive Officer, Engineer and Assistant Engineer respectively. 5) The fourth offender is an adult male who is also a director of the fifth offender. The latter is a private company duly incorporated in terms of the laws of this country. 6) As regards count 1, the court found that the offenders, as co – perpetrators, misrepresented to Council that the fifth offender had constructed a bridge at Kaspiriki Causeway. It found that the misrepresentation was intended to and induced Council to pay US$18 800 to the fifth offender as the contract price for construction of the bridge in question when all the offenders knew that it was one Kainos Mupiwa, not the fifth offender, who had constructed that bridge. 7) In respect of count 3, the court found that the first, second and third offenders had stolen plumbing material belonging to Council. The material was valued at US$3 889.75. 8) A like finding was made in respect of count 5, save that the value of the building material involved was US$8 501.09. HH 437 - 25 HCH ACC 47/24 9) In count 4, the court found that all the offenders had misrepresented to council that the fifth offender had constructed ablution facilities and Chiedza Clinic (situate in council’s territory) thus inducing council to pay an amount of US$6 075.37 to the fifth offender. 10) In the matter of The State v Mupamaonde and 3 Ors HH 409/25 we observed that the penalty for the crime of fraud is provided for in the Criminal Law Code. We were mindful of the binding nature of the sentencing guidelines, that the guidelines set out general circumstances both of mitigation and aggravation but that a court is not precluded from finding other circumstances of either mitigation or aggravation specific to the matter before it. We noted too that the guidelines came with aggravating and mitigating factors as well as presumptive penalties applicable to each crime. 11) We think that our remarks at para 13 of that judgment bear repetition. We said: “…Before embarking on the process of selecting the applicable objective(s) to be met by the sentence which we will impose in this matter, we must make a finding on whether the crime was committed in aggravating or mitigating circumstances. That finding will not only enable us to select the objective or objectives to be met by that sentence but also guide us in assessing an appropriate sentence. Either way, the presumptive sentence will be the starting point.” We still subscribe to these views. 12) In light of that approach, we think that all the counts were committed in aggravating circumstances. The first, second and third offenders held positions of trust. They were, in that order, the Chief Executive Officer, Engineer and Assistant Engineer of the Council. They were holders of public office. The offences resulted in the loss of public funds. Such funds were not only considerable but were not recovered. 13) The fourth offender was convicted in his personal capacity. He was also a director of the fifth offender. It is no small office to be a director of a private limited company in this jurisdiction. He abused his position in the fifth offender by availing it as a vehicle to commit counts 1 and 4. 14) All the offences involved prior planning and premeditation. In count 1, the offenders, riding on the fifth offender winning a tender to build Kaspiriki Causeway Bridge, generated paperwork to obtain the contract price when the actual work was done by a then 77 year old man from rural Gutu. The work itself was done outside the tender HH 437 - 25 HCH ACC 47/24 awarded to the fifth offender. It was also done by a party who had not entered into the contract with council. In short, the second and third offenders privately verbally contracted Mupiwa to construct the bridge for a pittance as a strategy to enable the second, third, fourth and fifth offenders to lay their hands on the US$18 800 contract price. Mupiwa did not participate in the tender to build the bridge because the tender was only open to private limited companies. The offenders still had their way because the fifth offender participated and won the tender but had Mupiwa do the actual work. That way, they defeated the tender procedure. That could only have been the result of prior planning and premeditation. 15) There also is evidence of prior planning and premeditation in the commission of counts 4, 3 and 5. 16) As regards the former, the five offenders teamed up to create and present paperwork falsely representing that the fifth offender had built ablution facilities at Chiedza Clinic and was thus entitled to payment of an amount of US$6 075.37. They took advantage of the fact that the fifth offender had, in terms of a contract entered into with council, an obligation to do construction work at Chiedza clinic. The paper trail was but a cover to enable the commission of the fraud. 17) With respect to counts 3 and 5, after having participated in the process leading up to procurement of material by Council, the first, second and third offenders abused their influential positions by stealing that material. In count three, the material was taken to Karoi sub office by an intern on the instructions of the first offender. It was not entered into Council records because there was nothing to identify it as belonging to the local authority. But Council had gone through a whole procurement process and paid the full purchase price for that material only for the material to be stolen by the three offenders in question. All three were insiders within Council. This is why we say there was prior planning and premeditation because they were possessed of information to enable them to steal the material. 18) Much the same can be said of count 5. The only differences are that this material never reached the Karoi Sub office at all and that its value was higher than that which is the subject of count 3. Further, the first offender instructed an intern to sign a delivery note HH 437 - 25 HCH ACC 47/24 for the material at the supplier’s offices but to leave the goods there. The intern was used as an object to enable the commission of the theft. He unwittingly obliged. This is reprehensible indeed. 19) The offenders, relative to such counts wherein they were convicted, were part of an organized criminal gang. They committed the offences in furthermore of organized crime. They played different but complementary roles in the commission of the offences. They were a team. 20) Count 1 evidences the interaction of players in the public and private sectors coming together to commit a serious offence of fraud tainted with corruption. Count 4 reflects players in the same sectors teaming up to prejudice the public of its funds. 21) As if to undo themselves, the first, second and third offenders again ganged up to steal material procured by their employer. All three are high ranking Council officials. They bit the hand that fed them. 22) But all five are first offenders. They deserve some measure of leniency. 23) The first, second, third and fourth offenders are 46, 31, 43 and 39 years old respectively. They are in the prime of their lives. They are married and are sole breadwinners to their families and other dependents. Custodial sentences will drastically impact on these offenders and those dependent on them for their livelihoods. 24) These four offenders have fallen from grace. That on its own is a form of punishment. 25) They have lost employment. For that they have nobody but themselves to blame. They were gainfully employed. The offences were committed out of greed rather than need. But the loss of employment is a mitigating factor. See S v Katsaura 1997 (z) ZLR 102 (H). It is some form of punishment. 26) The first offender owns a house and a motor vehicle. These assets have a combined value of US$58 000. He has savings amounting to US$ 883 and five beasts with a total value of US$ 1500. 27) The second offenders is without assets and savings. He was on a US$ 2500 monthly salary. He is hypertensive and is constantly on tuberculosis treatment. He was incarcerated for three months before being admitted to bail pending trial. This period is not inordinate. HH 437 - 25 HCH ACC 47/24 28) The third offender owns two underdeveloped pieces of land. One is residential. The other is commercial. Their combined value is US$14 000. He owns a beast with a value of US$200. He has no savings. 29) Besides his position as director of the fifth offender the fourth offender was gainfully employed at Manna Resorts on a monthly salary of US$ 1500 in addition to being involved in some informal business activities which earned him an average monthly income of US$ 800. At p2 of his submissions in mitigation of sentence, he said: “4th offender has capacity to restitute Council as he has some assets belonging to him. It is trite law that restitution should be considered a mitigation factor.” 30) The trial was protracted. It commenced on 25 June 2024. The offenders were convicted on 8 July 2025, which was slightly more than a year later. We accept that they underwent mental anguish and anxiety as they pondered on the outcome of the trial. Although we think that mental anguish and anxiety visits all those undergoing criminal trial, we are prepared to accept that the prolonged period taken by this trial elevates such anxiety and anguish as occasioned to the offenders to a circumstance of mitigation. We proceed on that basis. 31) The fifth offender did not disclose whether it has means. No reasons were tendered for taking this position. However, it will be remembered that it won the tender to build Kaspiriki Causeway Bridge and also entered into a contract with Council to do construction work at Chiedza Clinic. There is no evidence to suggest offender is a briefcase company so to speak. 32) To their credit, the first, third, fourth and fifth offenders have offered to restitute. Although he has not asked to be allowed to restitute, no prejudice will befall the second offender by reason of the imposition of a sentence incorporating restitution. 33) Since all are first offenders, we think that it is sound to accept that there is no probability of them committing similar or other offences. 34) Courts in this and other jurisdictions have always expressed very strong views when it comes to sentencing offenders for crimes manifesting any form of corruption. Words and phrases such as “dangerous and insidious evil,”, “detect”, “eradicate” “deterrence” and public indignation” feature prominently in the jurisprudence. See S v Van der Westhuizen HH 437 - 25 HCH ACC 47/24 1974 (4) SA 61(C) G, Attorney General v Chinyerere and Anor 1983 (2) ZLR 329 at 332, S v Ngara 1987 (1) ZLR 91 (SC) at 101 B-C and S v Chogugudza 1996 (1) ZLR 28 (S) at 43B – C. 35) The fight against corruption and abuse of public office has become so serious that our Constitution has a national objective speaking to good governance. There the need to take measures to “expose” “combat” and “eradicate” all forms of corruption and abuse of power by those holding public office is entrenched. The intention of the makers of the constitution as regards how our Courts should deal with offenders such as those before us cannot be clearer. 36) The statutory penalty for fraud committed in aggravating circumstances is a fine not exceeding level 14 or imprisonment not exceeding 35 years or both. The presumptive penalty for a fraud committed in aggravating circumstances is not a non-custodial sentence. Instead, it is 20 years imprisonment. 37) As for the crime of theft, the statutory penalty is a fine not exceeding level 14 or 25 years imprisonment or both. Likewise, the presumptive penalty is not non-custodial. It is 10 years imprisonment. 38) We think that the 1st, 2nd, 3rd and 4th offenders have failed to justify why we should depart from these presumptive sentences to such an extent as to impose non-custodial sentences of any kind be it fines or community service. 39) Our view is that fairly lengthy custodial sentences are inevitable. Anything short of that will erode the confidence of the public in the criminal justice system. These are serious crimes. Retribution and deterrence predominate over the objectives of sentence personal to the offenders. See S v Karg 1961 (1) SA 231 at 236 A-B. The message must be communicated to the offenders as well as other would be offenders that the courts will play their role in exposing combating and eradicating all forms of corruption and abuse of power by those holding public office. The court does not only abhor all forms of corruption and abuse of power by those holding public office but also by those who corrupt and team up with public officers in abusing such power. It is for this reason that we will not sentence the 4th offender differently from the other offenders who are natural persons. HH 437 - 25 HCH ACC 47/24 40) Before pronouncing the sentence we pause to say this. Public funds are scarce. They are sacred. They need to be protected and put to proper use so that this country develops. The offenders subordinated the national interest to their own selfish private interests. 41) As regards count 1 the sentence which we impose is in line with the comparable case of S v Mupamaonde and Others (supra). We do not share the views of Messrs Mabhaudhi and Murisi that the sentence in court 1 should run concurrently with that imposed on the concerned offenders in S v Mupamaonde and Ors (supra). To do as urged by both counsel would not mark our abhorrence of the crime committed by the concerned offenders. It would convey the unintended message to would be offenders that it is better to commit several serious crimes tainted with corruption and abuse of power than one such crime if and when it comes to sentencing. 42) As regards the counts of theft (3 and 5) there is no justification for exceeding the presumptive penalty. In addition, we will suspend portions of the sentence which we will impose on each of the 1st, 2nd and 3rd offenders in count 5 on conditions of good behaviour and restitution. 43) With respect to count 3, we think it unnecessary to suspend a further potion of the sentence on conditions of good behaviour. In view of the sentence in count 5 it seems to us academic to do so. What we will do in respect of count 3 is this. We will impose a shorter custodial sentence to reflect the lesser value of the property stolen, together with the other factors of mitigation, and suspend a portion of that sentence on condition of restitution. 44) Because we cannot impose a custodial sentence on the fifth offender, we think that the justice of the matter will be served not just by sentencing this offender to pay restitution in count 4 but also to pay a fine. Corporate bodies must know that crime does not pay. It seems to us that a sentence such as we will impose in this regard is tailored to aid in exposing, combating and eradicating this form of corruption and abuse of public power by those of the 5th offender’s ilk. SENTENCE Count 1 HH 437 - 25 HCH ACC 47/24 2nd ,3rd and 4th offenders: Each : 18 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition the offender does not within that period commit any offence involving dishonesty and for which upon conviction the offender is sentenced to a term of imprisonment without the option of either a fine or community service. In addition the 2nd, 3rd, and 4th offenders are each sentenced to pay a fine in the sum of US$ 5000 or the equivalent amount in the local currency at the prevailing rate on the date of payment in default 12 months imprisonment. The 5th offender is sentenced to pay a fine in the sum of US$5000 or the equivalent amount in the local currency at the prevailing rate on the date of payment. The Registrar of the High Court shall issue a writ of execution against movable and immovable property requiring the Sheriff for Zimbabwe to attach and take into execution the movable and immovable property of Marloshac Investments (Pvt) Ltd to cause to be realised therefrom the sum of US$5000 or the equivalent amount in the local currency at the prevailing rate, being the fine. Count 3 1st, 2nd and 3rd offenders: Each: 6 years imprisonment of which 6 months imprisonment is suspended on condition the offender pays restitution in the sum of US$ 1297 or the equivalent amount in the local currency at the rate prevailing on the date of payment to Hurungwe Rural District Council through the Registrar of the High Court at Harare. Count 4 1st, 2nd , 3rd and 4th offenders : Each : 18 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition the offender does not within that period commit any offence involving dishonesty for which upon conviction the offender is sentenced to a term of imprisonment without the option of either a fine or community service. A further 6 months imprisonment is suspended on condition the offender pays restitution in the sum of US$ 1215-20or the equivalent amount in the local currency at the rate prevailing on the date of payment to Hurungwe Rural District Council through the Registrar of the High Court at Harare. HH 437 - 25 HCH ACC 47/24 5th offender: shall pay restitution in the sum of US$1215-20 or the equivalent amount in the local currency at the rate prevailing on the date of payment to Hurungwe Rural District Council through the Registrar of the High Court at Harare. In addition the 5th offender shall pay a fine in the sum of US$2 500 or the equivalent amount in the local currency at the rate prevailing on the date of payment. The Registrar of the High Court shall issue a writ of Execution against movable and immovable property requiring the Sheriff for Zimbabwe to attach and take into execution the movable and immovable property of Marloshac Investments (Pvt) Ltd to cause to be realized therefrom the total sum of US$ 3715.20 or the equivalent amount in the local currency at the prevailing rate, being the restitution and the fine. Count 5 1st ,2nd and 3rd offenders : Each : 10 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition the offender does not within that period commit any offence involving dishonesty for which upon conviction the offender is sentenced to a term of imprisonment without the option of either a fine or community service. A further 6 months imprisonment is suspended on condition the offender pays restitution in the sum of US$2834 or the equivalent amount in local currency at the rate prevailing on the date of payment to Hurungwe Rural District Council through the Registrar of the High Court at Harare CHIKOWERO J: .................................................................. The National Prosecuting Authority, the state’s legal practitioners Masiya-Sheshe, 1st and 3rd offenders’ legal practitioners Murisi and Associates and Charamba and Partners, 2nd offender’s legal practitioners Mangwiro-Tandi Law, 4th and 5th offender’s legal practitioners