CHIMUTASHU v THE STATE (106 of 2025) [2025] ZWHHC 106 (27 February 2025)

3 HH 106 - 25 HCHCR 6077/24 MARLVEN CHIMUTASHU versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE; 10 & 27 February 2025 Criminal Appeal P Patisani, for the appellant C Muchemwa, for the respondent CHIKOWERO J: This is an appeal against the whole judgement of the Magistrates Court convicting the appellant of the charge of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). The lower court sentenced the appellant to six years imprisonment of which one year was suspended on the usual condition of future good behaviour and a further two years on condition he paid restitution to the complainant in the sum of US$102 000 by 29 December 2023. In the event that restitution were paid in full the appellant would serve three years imprisonment. The lower court also ordered that the sums of US$45 00 and US$183 000 frozen in the bank accounts of one Andrew Jubane and Fidelity Refiners (Pvt) Ltd (Fidelity) respectively, be released to the complainant with immediate effect. The facts found proved were these. On 13 June 2017 and at Harare the appellant misrepresented to the complainant that he had 225 000 litres of diesel at Masasa which he was selling and able to deliver to the complainant on that same day on the complainant paying US$243 000 to the appellant well knowing that he had no such diesel and was not selling same. Induced by the misrepresentation, the complainant paid the said amount of money whereupon the appellant not only did not deliver the diesel (because he had lied that he was selling the same) but immediately transferred US$183 000 into Fidelity’s bank account to buy gold and US$50 000 into Andrew Jubane’s bank account. The latter was the appellant’s brother in law in the sense that their spouses were siblings. When Jubane’s account was frozen an amount of US$5 000, parcel of the US$50 000, had already been consumed by the appellant. The appellant’s defence that the matter was civil by dint of it being a contract for the sale and supply of diesel by a named company in which the appellant was the Chief Executive Officer to the complainant was rejected as false. The same fate befell his evidence that the $234 000 was paid by the complainant in Zimbabwe dollars. As regards the appeal against the conviction the sole issue that arises from the grounds of appeal is whether the lower court correctly convicted him of the charge of fraud. What the appellant is seeking to impugn are findings of fact and credibility made by the lower court. The approach of an appellate court in a matter such as the present is settled. It is captured in Hoffman and Zeffert: The South African Law of Evidence, 4th ed, at p489 as follows; “There are no rules of law which define circumstances in which a finding of fact may be reversed, but as a matter of common sense the appellate court must recognize that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanor of the witnesses, and courts of appeal are therefore very reluctant to disturb findings which depend upon credibility. The appeal court has rather more latitude in criticising the reasons which the court a quo has given for its decision. The reasons given for accepting certain evidence may be unsatisfactory, eg, they may involve a clear non sequitur. Alternatively, it may be plain from the record that the reasons are based upon a false premise, eg a mistake of fact, or that the trial judge has ignored some fact which is clearly relevant. Errors of this kind are generally referred to as misdirections of fact. Where there has been no misdirection of fact by the trial court, the appeal court will only reverse it when it is convinced that it is wrong.” This passage was cited with approval in Rich v Rich SC 16/10 as well as in Muskwe v Nyajina & Ors SC 59/14. See also Barros & Anor v Chimphonda 1999 (1) ZLR 58(S) at 62F – 63A and Kereke v Maramwidze & Anor SC 53/24 and the cases cited therein. Now, the lower court found that the complainant, Barnabas Muganyi and Joseph Manjoro were credible witnesses. It found that the three had corroborated each other. They all testified on the misrepresentation by the appellant to the complainant, how the appellant parted with money consequent to that misrepresentation, their trip to Masasa (in the appellant’s vehicle) under the impression that the appellant was taking them to his fuel depot only to be surprised when he pressed the complainant to get into some office at Fidelity and how they were all shocked when the complainant, in a fit of rage, came out of that office shouting that the appellant had defrauded him. The misrepresentation was made in a meeting held in the appellant’s office. It was made to the complainant in the presence of Muganyi and Manjoro. The appellant furnished the complainant with the account details into which the latter, misled into believing that the former was a genuine businessman, immediately transferred the sum of US$234 000. That amount would have been sufficient to purchase 225 000 litres of diesel because the appellant told the complainant that the diesel was being sold at US$1.04 per litre. The appellant immediately drove the complainant, Muganyi and Manjoro to Masasa. There, he never took them to his fuel depot. Instead, he surprised the trio by leading the complainant into Fidelity Printers Refiners (Pvt) Ltd’s Office. Another shock was to hit the complainant in that office – one Moyo told the appellant that US$183 000 had just been paid into Fidelity’s account whereupon the appellant announced to the complainant that he would use the proceeds realised from the sale of the gold to fund the purchase of fuel for the complainant. The complainant would have none of it, openly declaring that he was not in the business of buying gold. All that he wanted was the fuel that he had paid for. With that, the complainant stormed out of that office. Agitated, he told Muganyi and Manjoro, who had remained in the car, that the appellant had defrauded him for he knew right from the word go that he did not have fuel for sale despite having represented otherwise. That the appellant made the misrepresentation is, besides the testimony of the complainant, Muganyi and Manjoro, borne out by other evidence on record. There is a letter signed by the appellant addressed to Fidelity instructing them to reverse the US$183 000 transfer. It was authored immediately after the complainant had realised that he had been defrauded, that, instead of his money being deployed towards purchasing the diesel, the appellant had diverted it to his personal use. A portion of the money had been used to pay off a debt that the appellant owed Fidelity. Part of the funds had been used to buy gold. That was not all. Hot on the heels of the complainant making the US$234 000 payment in favour of the appellant, the latter instantly transferred portion of the money, in the sum of US$50 000, into Jubane’s account. Of the US$50 000 the appellant instructed Jubane to withdraw US$5000 which the appellant expended on his (the appellant’s) “personal logistics”. Clearly, there is overwhelming evidence on record that the appellant made the representation and that such misrepresentation induced the complainant to act to his prejudice. The complainant would not have been alarmed if the appellant’s company had sold the diesel to him on 13 June 2017 with the delivery scheduled for 19 August 2017. The appellant would not have signed a letter instructing Fidelity to reverse the US$183 000 transfer. The complainant would not have made an immediate police report. The US$50 000 would not have been transferred to Jubane by the appellant on the same date that the US$234 000 was paid or at all. A company is not a natural person. It does not have a brother in law. The US$183 000, US$50 000 and US$5000 transfers were at the instance of the appellant, and not authorised by any company. Despite being subject to intense cross – examination, the appellant flatly refused to disclose what it was that he called “personal logistics”. It was under that head that he said he expended the US$5000 already mentioned in this judgement. He never drove the complainant, Muganyi and Manjoro to his fuel depot in Masasa. He had no such depot. He had no diesel for sale. He was not selling any. The 13 June 2017 invoice by a company which was not operating, was correctly found to be a latter day fabrication designed to shield him from criminal liability. The complainant was correctly believed in testifying that he was not issued with any invoice at all. He testified, without being challenged, that it would not have made any business sense for him to pay as much as US$234 000 on 13 June 2017 to buy 225 000 litres of diesel which would only be delivered on 19 August 2017 when such a product was not scarce on the market. That the invoice produced by the appellant at the trial was never issued to him was also demonstrated by the fact that it bore a Value Added Tax (VAT) component when diesel was not subject to VAT at all. The appellant was correctly found to have taken advantage of his position in a company which existed only on paper (that the company was not operating was conceded by him) by posing as a genuine business person to dupe the complainant into parting with as much as US$234 000 without any paperwork. Fortunately for the complainant, there was a paper trail of the payment itself. He transferred that money into an account the details of which were furnished to him by the appellant in person. No onus was placed on the appellant to prove his innocence. All that the lower court did, which cannot be faulted, was to assess the evidence in its totality. Having done that, it found, correctly, that the State had proved its case beyond reasonable doubt. The defence was found to be false. It matters not that the lower court did not, in so many words, say that the defence was false. It would not have convicted had it not been satisfied that the case against the appellant had met the proof beyond reasonable doubt threshold. There is no evidence on record that the appellant was inhibited from producing defence witnesses. If anything, the lower court must be commended for going out of its way to ensure that the appellant received a fair trial. At the end of the day he had no defence witness to produce. In any event, there is no evidence on record that the verdict could have been otherwise had the defence case consisted of the testimony of anybody else in addition to that of the appellant. No miscarriage of justice resulted from the fact that only the appellant testified in his own defence. The trial revealed that the appellant, in an endeavor to raise money for his own use, misrepresented to the gullible complainant that he was selling 225 000 litres of diesel at US$1.04 per litre. In all the circumstances, the lower court did not misdirect itself in convicting the appellant. The evidence on record justifies the conviction. The appeal against the sentence is likewise without substance. This was a fraud committed in aggravating circumstances. Careful planning and execution went into the commission of the offence. The extent of the prejudice, namely US$234 000, is substantial. It was not the appellant’s desire that his efforts to spirit away all the money be frustrated. The appellant gained the complainant’s trust and went on to abuse that trust in a most reprehensible manner. The presumptive sentence where the offence of fraud is committed in aggravating circumstances is twenty years imprisonment. Having balanced the aggravating and mitigating factors the lower court, in the exercise of its discretion, decided that six years imprisonment was the befitting sentence. The mitigation included the appellant’s status as a first offender and that part of the money was recovered. The court suspended one year on the condition of future good behaviour. It suspended a further two years on condition restitution were paid. The court ordered that the sums of US$45 000 and US$183 000, frozen in Jubane and Fidelity’s bank accounts respectively, be released to the complainant forthwith. It found that those amounts were frozen in those accounts. That is why it made that order. It took the view that its order was enforceable. When those two amounts are added they give us a total of US$228 000. When we subtract the US$228 000 from the US$234 000 which was paid to the appellant by the complainant the answer is US$6000. That should have been the subject of that part of the sentence requiring restitution to be paid. The mathematical error is clear on the record. We fall back on our powers of review to correct the error. But this we say. The sentence of six years imprisonment with portions suspended on the conditions of good behaviour and restitution falls well below the presumptive sentence of twenty years imprisonment for this fraud committed in aggravating circumstances. We have looked at the reasons tendered for settling for that sentence. We think that the sentence errs on the side of lenience. The sentence does not shock us. The appeal against the sentence cannot succeed. ORDER IT IS ORDERED THAT: The appeal be and is dismissed in its entirety. In the exercise of our powers of review we attend to the patent error in the sentence by recording the correct amount to be paid as restitution. For the avoidance of doubt, the sentence reads: “The accused is sentenced to 6 years imprisonment of which 1 year is suspended for 5 years on condition the accused does not within that period commit an offence involving dishonesty for which upon conviction he will be sentenced to a term of imprisonment without the option of a fine. Of the remaining 5 years imprisonment, 2 years imprisonment is suspended on condition the accused restitutes the complainant the sum of US$6000 through the Clerk Of Court at Harare Magistrates Court on or before 30 June 2025. The remaining 3 years imprisonment is effective. It is also ordered that the US$45 000 held in Andrew Jubane’s CABS Account 1003662641 be released to the complainant with immediate effect. Further, the US$183 000 frozen and held in the account of Fidelity Printers Refiners (Pvt) Ltd be also released to the complainant’s account with immediate effect.” Chikowero J: …………………………………………………… Zhou J: …………………………………………………………. Agrees Patisani and Associates, appellant’s legal practitioners The National Prosecuting Authority, respondent’s legal practitioners 3 HH 106 - 25 HCHCR 6077/24 3 HH 106 - 25 HCHCR 6077/24 MARLVEN CHIMUTASHU versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE; 10 & 27 February 2025 Criminal Appeal P Patisani, for the appellant C Muchemwa, for the respondent CHIKOWERO J: This is an appeal against the whole judgement of the Magistrates Court convicting the appellant of the charge of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). The lower court sentenced the appellant to six years imprisonment of which one year was suspended on the usual condition of future good behaviour and a further two years on condition he paid restitution to the complainant in the sum of US$102 000 by 29 December 2023. In the event that restitution were paid in full the appellant would serve three years imprisonment. The lower court also ordered that the sums of US$45 00 and US$183 000 frozen in the bank accounts of one Andrew Jubane and Fidelity Refiners (Pvt) Ltd (Fidelity) respectively, be released to the complainant with immediate effect. The facts found proved were these. On 13 June 2017 and at Harare the appellant misrepresented to the complainant that he had 225 000 litres of diesel at Masasa which he was selling and able to deliver to the complainant on that same day on the complainant paying US$243 000 to the appellant well knowing that he had no such diesel and was not selling same. Induced by the misrepresentation, the complainant paid the said amount of money whereupon the appellant not only did not deliver the diesel (because he had lied that he was selling the same) but immediately transferred US$183 000 into Fidelity’s bank account to buy gold and US$50 000 into Andrew Jubane’s bank account. The latter was the appellant’s brother in law in the sense that their spouses were siblings. When Jubane’s account was frozen an amount of US$5 000, parcel of the US$50 000, had already been consumed by the appellant. The appellant’s defence that the matter was civil by dint of it being a contract for the sale and supply of diesel by a named company in which the appellant was the Chief Executive Officer to the complainant was rejected as false. The same fate befell his evidence that the $234 000 was paid by the complainant in Zimbabwe dollars. As regards the appeal against the conviction the sole issue that arises from the grounds of appeal is whether the lower court correctly convicted him of the charge of fraud. What the appellant is seeking to impugn are findings of fact and credibility made by the lower court. The approach of an appellate court in a matter such as the present is settled. It is captured in Hoffman and Zeffert: The South African Law of Evidence, 4th ed, at p489 as follows; “There are no rules of law which define circumstances in which a finding of fact may be reversed, but as a matter of common sense the appellate court must recognize that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanor of the witnesses, and courts of appeal are therefore very reluctant to disturb findings which depend upon credibility. The appeal court has rather more latitude in criticising the reasons which the court a quo has given for its decision. The reasons given for accepting certain evidence may be unsatisfactory, eg, they may involve a clear non sequitur. Alternatively, it may be plain from the record that the reasons are based upon a false premise, eg a mistake of fact, or that the trial judge has ignored some fact which is clearly relevant. Errors of this kind are generally referred to as misdirections of fact. Where there has been no misdirection of fact by the trial court, the appeal court will only reverse it when it is convinced that it is wrong.” This passage was cited with approval in Rich v Rich SC 16/10 as well as in Muskwe v Nyajina & Ors SC 59/14. See also Barros & Anor v Chimphonda 1999 (1) ZLR 58(S) at 62F – 63A and Kereke v Maramwidze & Anor SC 53/24 and the cases cited therein. Now, the lower court found that the complainant, Barnabas Muganyi and Joseph Manjoro were credible witnesses. It found that the three had corroborated each other. They all testified on the misrepresentation by the appellant to the complainant, how the appellant parted with money consequent to that misrepresentation, their trip to Masasa (in the appellant’s vehicle) under the impression that the appellant was taking them to his fuel depot only to be surprised when he pressed the complainant to get into some office at Fidelity and how they were all shocked when the complainant, in a fit of rage, came out of that office shouting that the appellant had defrauded him. The misrepresentation was made in a meeting held in the appellant’s office. It was made to the complainant in the presence of Muganyi and Manjoro. The appellant furnished the complainant with the account details into which the latter, misled into believing that the former was a genuine businessman, immediately transferred the sum of US$234 000. That amount would have been sufficient to purchase 225 000 litres of diesel because the appellant told the complainant that the diesel was being sold at US$1.04 per litre. The appellant immediately drove the complainant, Muganyi and Manjoro to Masasa. There, he never took them to his fuel depot. Instead, he surprised the trio by leading the complainant into Fidelity Printers Refiners (Pvt) Ltd’s Office. Another shock was to hit the complainant in that office – one Moyo told the appellant that US$183 000 had just been paid into Fidelity’s account whereupon the appellant announced to the complainant that he would use the proceeds realised from the sale of the gold to fund the purchase of fuel for the complainant. The complainant would have none of it, openly declaring that he was not in the business of buying gold. All that he wanted was the fuel that he had paid for. With that, the complainant stormed out of that office. Agitated, he told Muganyi and Manjoro, who had remained in the car, that the appellant had defrauded him for he knew right from the word go that he did not have fuel for sale despite having represented otherwise. That the appellant made the misrepresentation is, besides the testimony of the complainant, Muganyi and Manjoro, borne out by other evidence on record. There is a letter signed by the appellant addressed to Fidelity instructing them to reverse the US$183 000 transfer. It was authored immediately after the complainant had realised that he had been defrauded, that, instead of his money being deployed towards purchasing the diesel, the appellant had diverted it to his personal use. A portion of the money had been used to pay off a debt that the appellant owed Fidelity. Part of the funds had been used to buy gold. That was not all. Hot on the heels of the complainant making the US$234 000 payment in favour of the appellant, the latter instantly transferred portion of the money, in the sum of US$50 000, into Jubane’s account. Of the US$50 000 the appellant instructed Jubane to withdraw US$5000 which the appellant expended on his (the appellant’s) “personal logistics”. Clearly, there is overwhelming evidence on record that the appellant made the representation and that such misrepresentation induced the complainant to act to his prejudice. The complainant would not have been alarmed if the appellant’s company had sold the diesel to him on 13 June 2017 with the delivery scheduled for 19 August 2017. The appellant would not have signed a letter instructing Fidelity to reverse the US$183 000 transfer. The complainant would not have made an immediate police report. The US$50 000 would not have been transferred to Jubane by the appellant on the same date that the US$234 000 was paid or at all. A company is not a natural person. It does not have a brother in law. The US$183 000, US$50 000 and US$5000 transfers were at the instance of the appellant, and not authorised by any company. Despite being subject to intense cross – examination, the appellant flatly refused to disclose what it was that he called “personal logistics”. It was under that head that he said he expended the US$5000 already mentioned in this judgement. He never drove the complainant, Muganyi and Manjoro to his fuel depot in Masasa. He had no such depot. He had no diesel for sale. He was not selling any. The 13 June 2017 invoice by a company which was not operating, was correctly found to be a latter day fabrication designed to shield him from criminal liability. The complainant was correctly believed in testifying that he was not issued with any invoice at all. He testified, without being challenged, that it would not have made any business sense for him to pay as much as US$234 000 on 13 June 2017 to buy 225 000 litres of diesel which would only be delivered on 19 August 2017 when such a product was not scarce on the market. That the invoice produced by the appellant at the trial was never issued to him was also demonstrated by the fact that it bore a Value Added Tax (VAT) component when diesel was not subject to VAT at all. The appellant was correctly found to have taken advantage of his position in a company which existed only on paper (that the company was not operating was conceded by him) by posing as a genuine business person to dupe the complainant into parting with as much as US$234 000 without any paperwork. Fortunately for the complainant, there was a paper trail of the payment itself. He transferred that money into an account the details of which were furnished to him by the appellant in person. No onus was placed on the appellant to prove his innocence. All that the lower court did, which cannot be faulted, was to assess the evidence in its totality. Having done that, it found, correctly, that the State had proved its case beyond reasonable doubt. The defence was found to be false. It matters not that the lower court did not, in so many words, say that the defence was false. It would not have convicted had it not been satisfied that the case against the appellant had met the proof beyond reasonable doubt threshold. There is no evidence on record that the appellant was inhibited from producing defence witnesses. If anything, the lower court must be commended for going out of its way to ensure that the appellant received a fair trial. At the end of the day he had no defence witness to produce. In any event, there is no evidence on record that the verdict could have been otherwise had the defence case consisted of the testimony of anybody else in addition to that of the appellant. No miscarriage of justice resulted from the fact that only the appellant testified in his own defence. The trial revealed that the appellant, in an endeavor to raise money for his own use, misrepresented to the gullible complainant that he was selling 225 000 litres of diesel at US$1.04 per litre. In all the circumstances, the lower court did not misdirect itself in convicting the appellant. The evidence on record justifies the conviction. The appeal against the sentence is likewise without substance. This was a fraud committed in aggravating circumstances. Careful planning and execution went into the commission of the offence. The extent of the prejudice, namely US$234 000, is substantial. It was not the appellant’s desire that his efforts to spirit away all the money be frustrated. The appellant gained the complainant’s trust and went on to abuse that trust in a most reprehensible manner. The presumptive sentence where the offence of fraud is committed in aggravating circumstances is twenty years imprisonment. Having balanced the aggravating and mitigating factors the lower court, in the exercise of its discretion, decided that six years imprisonment was the befitting sentence. The mitigation included the appellant’s status as a first offender and that part of the money was recovered. The court suspended one year on the condition of future good behaviour. It suspended a further two years on condition restitution were paid. The court ordered that the sums of US$45 000 and US$183 000, frozen in Jubane and Fidelity’s bank accounts respectively, be released to the complainant forthwith. It found that those amounts were frozen in those accounts. That is why it made that order. It took the view that its order was enforceable. When those two amounts are added they give us a total of US$228 000. When we subtract the US$228 000 from the US$234 000 which was paid to the appellant by the complainant the answer is US$6000. That should have been the subject of that part of the sentence requiring restitution to be paid. The mathematical error is clear on the record. We fall back on our powers of review to correct the error. But this we say. The sentence of six years imprisonment with portions suspended on the conditions of good behaviour and restitution falls well below the presumptive sentence of twenty years imprisonment for this fraud committed in aggravating circumstances. We have looked at the reasons tendered for settling for that sentence. We think that the sentence errs on the side of lenience. The sentence does not shock us. The appeal against the sentence cannot succeed. ORDER IT IS ORDERED THAT: The appeal be and is dismissed in its entirety. In the exercise of our powers of review we attend to the patent error in the sentence by recording the correct amount to be paid as restitution. For the avoidance of doubt, the sentence reads: “The accused is sentenced to 6 years imprisonment of which 1 year is suspended for 5 years on condition the accused does not within that period commit an offence involving dishonesty for which upon conviction he will be sentenced to a term of imprisonment without the option of a fine. Of the remaining 5 years imprisonment, 2 years imprisonment is suspended on condition the accused restitutes the complainant the sum of US$6000 through the Clerk Of Court at Harare Magistrates Court on or before 30 June 2025. The remaining 3 years imprisonment is effective. It is also ordered that the US$45 000 held in Andrew Jubane’s CABS Account 1003662641 be released to the complainant with immediate effect. Further, the US$183 000 frozen and held in the account of Fidelity Printers Refiners (Pvt) Ltd be also released to the complainant’s account with immediate effect.” Chikowero J: …………………………………………………… Zhou J: …………………………………………………………. Agrees Patisani and Associates, appellant’s legal practitioners The National Prosecuting Authority, respondent’s legal practitioners