S v Gandiya (CA 521 of 2012; Ref CRB 360 of 2012) [2015] ZWHHC 748 (30 September 2015)

1 HH 748-15 CA 521/12 Ref CRB 360/12 BERNARD GANDIYA versus THE STATE HIGH COURT OF ZIMBABWE BERE J HARARE, 23 September 2014 & 30 September 2015 Criminal Appeal T. Chamutsa, for the appellant K. Kachidza, for the respondent BERE J: This appeal follows the conviction and sentence of the appellant of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The conviction is against both conviction and sentence. The main ground of appeal in this case is that the impact of the evidence led did not support the appellant’s conviction more particularly in that: (a) Given the totality of the evidence led the story told by the appellant was reasonably possibly true. (b) At the time the appellant relinquished control of the safe, there was no proper handover takeover done. (c) The money left in the safe by the appellant was not verified at the time the appellant was hurriedly forced to relinquish control of the safe. (d) The appellant did not have exclusive access to the safe. There were other individuals who had access to the safe. (e) The court erred in religiously accepting the evidence of Kingstone Manyonganise as credible when the other evidence led painted a different picture. The respondent through its filed heads has chosen to support the conviction. It will be noted that all the witnesses who testified in the proceedings in the court a quo were unanimously agreed that at the time the appellant was directed to unceremoniously relinquish control of the safe there was no proper handover takeover of that safe. HH 748-15 CA 521/12 Ref CRB 360/12 I find this to be strange and most unusual particularly when the complainant institution was dealing with financial issues. It is not in dispute that when the appellant was directed to surrender the safe keys to one Joshua Kanyarira there was no attempt made to first verify the contents of the safe let alone the money that was allegedly observed by the witnesses stacked in an envelope. The defence proferred by the appellant was simply that before he had paid out rentals to the tune of US$3500-00 he was telephoned by the finance Manager Mr Manyonganise to withhold US$500-00 which money he kept into the safe until such time he was directed to surrender the safe keys to Joshua Kanyurira without following the most elementary practice of conducting a proper handover takeover exercise. The issue raised by the appellant could only have been rebutted or controverted by Kingstone Manyonganise. When called to testify Manyangonise denied ever giving the appellant the instruction to withhold $500-00 from the rentals. The appellant insisted that he was so instructed. The learned magistrate does not seem to have properly dealt with the diametrically opposed positions adopted by the appellant and Manyanganise. In fact the evidence in court clearly shows there was very little to choose between the competing positions put by these two witnesses. The learned magistrate could not have simply preferred the evidence of Manyonganise at the expense of the story told by the appellant. In criminal matters the scale in support of a conviction of an accused is tilted not by a strong conviction that the offence was convicted but by evidence tendered establishing beyond a reasonable doubt that the offence was convicted. Joshua Kanyarira blindly assumed control of the safe whose contents were not verified at all and I think it is a blind acceptance of his evidence that he was incapable of taking the $500-00 which the appellant says was left in the safe together with other payments which Joshua had to handle after the appellant had left his office. That there was some envelope whose contents were not verified is an averment that was confirmed by almost all the witnesses who testified including the appellant’s two witnesses. There are so many things which were poorly handled in this matter which make the conviction of the appellant unsafe. There was no audit conducted to try and have a proper record of the transactions done by both the appellant and his successor Joshua. HH 748-15 CA 521/12 Ref CRB 360/12 The conviction of the appellant could not have been supported by the boxing approach adopted by the learned magistrate in his assessment of the evidence of the appellant and Manyonganise. See the comments on the “boxing match approach” by McNally JA in the case of Sunface Bhaudhi Temba v The State.1 The allegation made by the appellant against Manyonganise was never investigated. There was no attempt at all to verify if indeed the witness telephoned the appellant. The outcome of this case could not possibly have been determined by the usual standard approach or comments by the court a quo that the state witnesses were consistent with their testimonies, because anyone who reads the record of proceedings will appreciate that this beautification or flowering of evidence could have equally have been extended to the appellant’s case. In the final analysis, the view that I take is that the conviction of the appellant was unsafe and the appeal succeeds in its entirety. HUNGWE J: agrees ……………………… Chamutsa and Partners, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners 1 SC 81/91 pp 1-2