State v Mupamaonde and Others (409 of 2025) [2025] ZWHHC 409 (9 July 2025)

1 HH 409-25 HCHACC43/24 THE STATE versus ROMEO TAPIWA MUPAMAONDE and ALFRED MAKAMA and BATSIRAYI NYAMAYARO and ANSTAND INVESTMENTS (PVT) LTD HIGH COURT OF ZIMBABWE CHIKOWERO J Harare, 1and 9 July 2025 Assessors: B. G. Kunaka A. H. Mhandu Sentencing Judgment W Mabhaudhi, for the State F Murisi with S. Kufandada for the 2nd offender D Sheshe for the 3rd offender T Ndoro for the 4th and 5th offenders CHIKOWERO J: 1. On 27 June 2025 the offenders were convicted following a full trial 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 Criminal Law Code”). 2. Luke Kalavina, who was the first accused, was found not guilty and acquitted. He was accused number one at the trial. 3. The second and third offenders were employed by the Hurungwe Rural District Council (“Council”), at the material time, as Engineer and Assistant Engineer respectively. 4. The fifth offender is a private company duly incorporated in terms of the laws of Zimbabwe with the fourth accused being its director. 5. The facts undisputed were these. One, the fifth offender participated in and won a tender from Council to construct Chehoko Causeway bridge in Hurungwe at a contract price of US$17 990. Second, the fifth offender and Council then entered into a written contract in terms whereof the former would construct the bridge in question with the latter paying that service provider the sum of US$17 990 for work done. A 79 year old man, one 2 HH 409-25 HCHACC43/24 Kainos Mupiwa, then constructed the bridge with the help of his two assistants and members of the local community. The members of the local community provided free labour. 6. What was in dispute at the trial was whether Mupiwa constructed the bridge as an employee, subcontractor or person hired by the fifth offender on the one hand (as contended by the offenders) or in his individual capacity as a person given the job by the second and third offenders. 7. In convicting the offenders, the Court found that despite the fifth offender not only winning the tender but entering into a contract with Council to construct the bridge, the second and third offenders, in connivance with the fourth and fifth offenders, gave the job to construct the bridge to Mupiwa with the second and third offenders paying Mupiwa for work done out of their own pockets. Again working in concert, the offenders then knowingly and intentionally misrepresented to Council that the fifth offender had constructed Chehoko Causeway bridge. This misrepresentation was intended to and did induce Council to act to its prejudice by paying the sum of US$17 990 to the fifth offender. In fact, the money was disbursed by the Zimbabwe National Road Administration (Zinara) through Council and, all things being equal, should have been due and payable to the fifth offender had it been the legal entity that constructed Chehoko Causeway bridge. 8. The penalty for the crime of fraud is governed by statute. In terms of s 136(a), (b)(i) and (ii) of the Criminal Law Code it is a fine not exceeding level fourteen or not exceeding twice the value of any property obtained by the offender as a result of the crime, whichever is greater; or imprisonment for a period not exceeding thirty five years; or both. 9. On 8 August 2023 (the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 Statutory Instrument 146 of 2023 (“the Sentencing Guidelines”) came into force. 10. S5 of the Sentencing Guidelines reads: Binding nature of guidelines on judicial officers “5. (1) Where these guidelines have provided for a presumptive penalty, the courts shall pay due regard to the applicable sentencing guidelines when sentencing offenders. (2) Where a sentencing court departs from a prescribed presumptive penalty as provided for in these guidelines it shall give reasons for that departure.” These provisions are self-explanatory. 11. S 8 of the Sentencing Guidelines lists general circumstances of aggravation. S 9 sets out twelve general circumstances of mitigation. However, both sections are not closed books. 3 HH 409-25 HCHACC43/24 They are not exhaustive. In the context of any particular matter, a Court may find other circumstances either aggravating or mitigating for the purposes of arriving at an appropriate sentence. 12. The Sentencing Guidelines contain three schedules. The third schedule contains various crimes, some aggravating and mitigating factors as well as the statutory and presumptive penalties relative to each crime depending on whether the particular crime would have been committed in aggravating or mitigating circumstances. 13. What is undeniable is this. 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. 14. We think that the crime was committed in aggravating circumstances. The amount involved, namely US$17 990, is considerable. It was not recovered. As engineer and assistant engineer of a rural district council, the second and third offenders held positions of trust. The people of Hurungwe entrusted them with those positions in the expectation that they would discharge their duties in Council in compliance with the laws of this country and to the benefit of the local populace. The fourth offender also held a position of trust. As director of a private limited company he owed a duty to its shareholder(s) to act in good faith. The fifth offender did not operate in a silo. It too stood in a position of trust. That is why it participated in the tender process and was entrusted with the obligation to construct Chehoko Causeway bridge so that the said infrastructure would benefit not only the people of Hurungwe but the nation at large. The second and third offenders were holders of public office. The commission of the crime resulted in the loss of public funds. Prior planning and premeditation preceded the commission of the offence. The offenders took advantage of Mupiwa’s expertise in bridge construction to access public funds without breaking a sweat. They took advantage of the fifth offender’s status as a private limited company in that, once it had won the tender and entered into the contract with Council, the paperwork could be processed for Council to pay the fifth offender for as long as the bridge had been constructed. It mattered not to the offenders that a 79 year old man from rural Gutu had actually been hired by the second and third 4 HH 409-25 HCHACC43/24 offenders to build an entire bridge which the fifth offender had won a tender to build. Mupiwa, who was paid a pittance for his excellent work in constructing the bridge from start to finish, takes his place among the victims of the crime. He was used as a tool to achieve the offenders’ premeditated goal. 15. The offenders constituted themselves as an organized criminal gang. They held strategic positions and played significant roles in the commission of the crime. The second and third offenders hired Mupiwa. The fourth offender associated himself with that conduct because his vehicle, the fifth offender, did not render any service at all despite bidding and winning the tender to build the bridge. What it did was to pick up the payment. 16. The second, third and fourth offenders are thirty-one, forty-three and thirty-nine years old respectively. All three are sole breadwinners of young families. There can be no doubt that custodial sentences will wreck havoc on their families and severely impact the offenders themselves. 17. All three have lost employment as a direct consequence of the conviction. The second offender, who is the youngest of the trio, has lost his employment with Council where he was on a monthly salary of US$2 500. The third offender has not been spared. His US$800 monthly salary inclusive of allowances and benefits is gone. The fourth accused’s US$500 monthly salary as a Logistics Officer at an institution called Agri- Value Chain is likewise water under the bridge. 18. The second offender also takes care of other members of the extended family. These are his school going brother and his elderly parents. His mother is on monthly medication, at his cost. He has neither assets of value nor any meaningful savings. The second offender is hypertensive and is on treatment for tuberculosis. Mr Murisi did not disclose the period that this offender spent in custody before his admission to bail, only mentioning that it was considerable. This must have been an oversight on his part. 19. The third offender owns two pieces of land. The one is a residential stand with an estimated value of US$4000. The other is a commercial stand worth US$10 000. He acquired these properties from Council. His sole beast is valued at US$200. He is without savings. 20. The fourth offender decided not to disclose his means. 21. All four are first offenders. That the sentence will reflect. Further, there is no probability of the offenders committing a similar or other offences. 22. Chapter 2 of the Constitution of this Country sets out the national objectives. One of them is good governance. In this regard, s 9 provides as follows: HH 409-25 HCHACC43/24 “9. Good governance (1) The State must adopt and implement policies and legislation to develop efficiency, competence, accountability, transparency, personal integrity and financial probity in all institutions and agencies of government at every level and in every public institution, and in particular – (a) appointments to public offices mut be made primarily on the basis of merit; (b) measures must be taken to expose, combat and eradicate all forms of corruption and abuse of power by those holding political and public offices.” (underlined for emphasis) 23. We think that the appropriate sentence in this case must meet the objectives set out in s 6(1)(b), (c) and (e) of the Sentencing Guidelines. There is no denying the place of retribution in the sentence. The offenders must face a sentence equal in measure to the harm that they have caused. Further, the sentence must prevent or discourage the offenders from reoffending in future and must deter other persons from engaging in corrupt conduct. Moreover, the offenders must lose the benefits received from the criminal conduct. See Mukupe v The State and Kapisoriso and Others v The State SC 101/24; S v Nhongo HMA 37/23 and R v Arineshito 1964(2) SA 699(SR) at 700A-B. 24. We will strive to ensure the sentence complies with the criteria set out in s 6(2) (a) – (c) of the sentencing guidelines. In this regard, the sentence will be what we think is the least onerous sanction appropriate in the circumstances. The maximum penalty for the offence or a sentencing close thereto should be reserved for the worst cases. Sentencing trends are still developing in this jurisdiction for sentences of fraud tainted with corruption, particularly where an organized criminal gang is involved. Mr Mabhaudhi drew our attention to the matter of the State v Dziva and Anor HH 256/24 in which a public prosecutor, following a full trial on a charge of fraud was convicted and sentenced to 10 years imprisonment of which 2 years were suspended for 5 years on the usual conditions of good behaviour. The amount involved was US$10 000. It had been used as a trap and was recovered. The present case is worse than S v Dziva (supra). Another decision (not referred to by all counsel) is the matter of The State v Sibanda and Anor HH 138/25. Following a full trial on a charge of fraud, Sibanda was convicted and sentenced to 6 HH 409-25 HCHACC43/24 twenty years imprisonment of which 5 years were suspended on the usual conditions of good behaviour to leave an effective sentence of 15 years imprisonment. We think it unnecessary to summarise the material facts of that matter. But they indicate a developing sentencing trend for the crime of fraud in the context of the sentencing guidelines. 25. In S v Ngara 1987(1) ZLR 91 (SC) GUBBAY JA, writing for the Supreme Court, said at 101 B – C: “This brings me to the matter of sentence. Any form of corruption resorted to by government servants, especially police officers whose duty it is to uphold the law and by their conduct set an example of impeccable honesty and integrity, is rightly viewed by the courts with abhorrence. It is a dangerous and insidious evil in any community and in particular requires to be guarded against in a developing country. Corruption is a crime difficult to detect and more difficult to eradicate. If unchecked or inadequately punished, it will disadvantage society by depriving it of a good, fairly and orderly administration. Deterrence and public indignation are the factors which must predominate above all others in the assessment of the penalty. See the remarks of BAKER J in S v Van der Westhuizein 1974(4) SA 61 (C) at 65G, quoted with approval in Attorney General v Chinyerere and Anor 1983(2) ZLR 329 at 332; and S v Paweni and Anor supra at 141.” 26. Nine years later, the same court repeated these sentiments in S v Chogugudza 1996(1) ZLR 28(S) at 43 B – C. At 43C the court added: “As a general rule, therefore, it is right to approach such cases on the basis that imprisonment is called for unless there are cogent reasons which indicate the contrary. See S v Newyear 1995 (1) SACR 626 (A) at 628 i: - 629 a.” 27. The cases of S v Ngara (supra) and S v Chogugudza (supra) were decided long before corruption had taken root both in the public and private sectors in this country. Zimbabwe is a developing country. No wonder the constitutional imperative entrenching good governance as a national objective. No wonder the call to take measures to expose, combat and eradicate all forms of corruption and abuse of power by those holding public offices. Imposing an appropriate sentence on the offenders before us is one such measure. 28. In light of the foregoing, there can be no doubt that any form of a non-custodial sentence would not meet the justice of this case. 29. A rural district council is not endowed with the same revenue generating streams as its urban counterpart. When public funds are chanelled through a rural district council for infrastructure development such funds are not meant to end up in the pockets of council 7 HH 409-25 HCHACC43/24 officials and their partners in crime. It would be naive to sentence on the basis that the second and third offenders benefitted nothing from the commission of the offence. All four offenders should lose the benefits received from their criminal conduct. 30. A fairly lengthy custodial sentence will be imposed on the second, third and fourth offenders. A failure to do so will erode the confidence of the public in the criminal justice system. We are mindful of the mitigating factors, particularly that all four are first offenders and that despite the circumstances of construction, Hurungwe now boasts of an excellent bridge at Chehoko. 31. This we pause to say. Besides its status as a first offender, no meaningful mitigation was presented on behalf of the fifth offender. This offender cannot receive a custodial sentence. It is an artificial person. But that is not a licence to in appropriately sentence it. 32. The public funds lost to the offenders is in the sum of US$17 990. It was disbursed by Zinara, through council, in the local currency at the rate prevailing on the date such payment was made. 33. The second offender is able to pay a level 14 fine. He has asked for such a fine in default of payment 12 months imprisonment. The third offender, who has demonstrated that he has means to pay a fine above level 14, has asked for a level 12 fine in default of payment 12 months imprisonment. The fourth offender has asked for community service in addition to a wholly suspended custodial term. There is no justification in sentencing the second, third and fourth offenders’ differently in so far as the monetary aspect of the sentence is concerned. 34. As for the fifth offender, we were implored to order that it performs community service. Our attention was not drawn to any decision in this jurisdiction in support of that submission. Our own efforts have not uncovered a case where our courts have sentenced an artificial person to perform community service. 35. In the result it is ordered as follows: “1. The second, third and fourth offenders are each sentenced to 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 a fine. 2. In addition the second, third and fourth offenders are each sentenced to pay a fine of US$5000 or the equivalent in the local currency at the prevailing rate on the date of payment in default of payment 12 months imprisonment. 3. The fifth offender shall pay a fine in the sum of US$5000 or the equivalent in the local currency at the prevailing rate on the date of payment. The Registrar of the High Court shall 8 HH 409-25 HCHACC43/24 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 Anstand Investments (Pvt) Ltd to cause to be realized therefrom the sum of US$5000 or equivalent in the local currency at the prevailing rate, being the fine.” CHIKOWERO J ……………………………….. The National Prosecuting Authority, the State’s Legal Practitioners Murisi and Associates and Charamba and Partners, second offender’s Legal Practitioners Masiya-Sheshe and Associates – third offender’s Legal Practitioners Murisi and Associates – fourth and fifty offender’s Legal Practitioners 8