S v Gwamure (CRB 10369 of 2013) [2015] ZWHHC 526 (9 June 2015)

1 HH 526-15 CA 155/13 CRB 10369/13 CEPHAS GWAMURE versus THE STATE HIGH COURT OF ZIMBABWE CHIWESHE JP & HUNGWE J HARARE, 2 June 2015 & 10 June 2015 Criminal Appeal S Murambasvina, for the appellant T Mapfuwa, for the respondent HUNGWE J: The issue in this appeal where the Prosecutor General filed a notice in terms of s 35 of the High Court Act, [Chapter 7:06] was whether the concession by the Prosecutor-General was well taken. I am unable to agree that the conviction in the case is insupportable. After taking both counsels to task at the hearing Mr Murambasvina as well as Mr Mapfuwa conceded that their attitude to the propriety of conviction was erroneous. These are the reasons why the appeal against conviction on the facts, lacks merit. The appellant was convicted on each count of the five counts of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act, [Chapter 7:23]. The modus operandi employed by the appellant was quite simple. He stayed in a rural village in Domboshava. This rural plot was once upon a time occupied by his biological mother who, sadly passed on. Her right to occupy was subject of a family discussion. That discussion resolved that since Sekai Shamidho, appellant’s step-sister had financed her mother in purchasing the right to occupy this plot, she should assume that right. She worked and lived in Harare. Appellant was in and out of work regularly. Sekai approached him and agreed with him that he should look after her interests in the rural plot. This is how appellant gained residence and later the confidence to advertise the land for “sale”. He “sold” to no less than five complainants who paid varying amounts of money without any reference to Sekai. Instead he managed to recruit the local village head into his scheme such that the hapless complainants got confirmation from this head that in fact the appellant owned the land he was HH 526-15 CA 155/13 CRB 10369/13 parcelling out to them. Problems for the complainants only began when Sekai learnt of the nefarious activities engineered by her beneficiary the appellant. She instituted legal proceedings seeking the eviction of the unlawful occupants of her plot and successfully managed to secure their eviction. Faced with this sudden turn of events the complainants turned to the police. The appellant was nowhere to be found. Police charged appellant with fraud. During his subsequent trial on fraud charges, the appellant did not dispute that he had sold the pieces of land. He however claimed that when his late mother bought the occupational rights to the communal land under headman Murape, she had registered him as the rightful owner in the village register which the current Chief Chinamhora keeps. Problems started when his step sisters grabbed other pieces of immovable property belonging to their late mother which are in Chiredzi and Masvingo. He claimed that he lawfully sold the stands to the complainants. The court a quo rejected his defence and found him guilty. All five counts were treated as one for the purpose of sentence and imposed four (4) years imprisonment of which two years were suspended for five years on the usual conditions of good behaviour and a year was suspended on condition that the appellant made restitution through the clerk of Court, Harare, in favour of the five complainants in the sums stated before 30 April 2014. The learned trial magistrate ably analysed the evidence before him meticulously and arrived at the only conclusion possible on the evidence adduced before him. That evidence established as fact that Sekai Shamidho, at some point, sponsored her mother in securing the right to occupy the plot in question. This was confirmed by Smellen Ruwangwe. She told the court that they had sold the occupational rights in the property to Sekai’s mother. She is related to both. Smellen was unable to comment on the issue of whether Sekai or appellant owned this plot. Her position was quite understandable. She could only testify regarding the transaction in which she was involved. The nomenclature of ownership of rural land is too technical for her understanding since, in terms of the Communal Lands Act, [Chapter 20:04], this land cannot be subject of a sale in the ordinary sense of the word. What can be sold however is the occupational rights over it subject to the Act. Thus when Sekai’s mother passed on, the family deliberations regarding succession to these rights were decided in favour of Sekai, on no other basis besides the fact that she had sponsored the securing of those same rights in her mother’s favour during her life-time. Seen in this light appellant’s behaviour upon knowledge that Sekai had alerted the complainants over the illegalities of his actions serve to demonstrate HH 526-15 CA 155/13 CRB 10369/13 that indeed Sekai, not the appellant, was entitled to exercise occupational rights over the land. The court in coming to this conclusion relied on the credibility of Sekai’s testimony and preferred it over that of the appellant and his Village Head. Appellant failed to appreciate that the issue was not whether who, between him and Sekai, had better title. Similarly, the respondent’s counsel failed to appreciate that it was not a requirement, in order to prove an act of fraud by the appellant that the State had to prove that Sekai owned the land in issue. The issue was whether appellant knew, or realised that there was a real risk or possibility of deceiving another person by making a representation that he “owned” or “was capable of transferring certain rights and interests connected to the piece of land” when in fact he was aware that he did not have any legal right of occupation or use over the land which he could transfer by sale to the complainants. It was in my view sufficient that this right was enjoyed by someone else other than the person who purported to “sell, transfer or alienate it.” His story did not impress the court. His actions betrayed the lie with which he pretended to the complainants to their prejudice. Section 136 of the Criminal Law (Codification and Reform) Act defines fraud in the following terms: “136 Fraud Any person who makes a misrepresentation- (a) (b) intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice; shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person, and be liable to:- (i) a fine not exceeding level fourteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or Imprisonment for a period not exceeding thirty-five years; or both. (ii) The appellant was well aware that he was staying on the plot out of the benevolence and at the invitation of his step-sister. In declaring the pieces of land for “sale” the appellant was making a false statement of both fact and law. The statement was in fact false because his benefactor, Sekai, was not selling the land; a false statement of law in that in terms of the Communal Land Act, [Chapter 20:04], this land was not lawfully subject of such sale. Clearly, he had no illusion as to whether he had any power to “sell, dispose or in any way alienate his sister’s rights of occupation.” Therefore his disappearance from the scene can HH 526-15 CA 155/13 CRB 10369/13 only be confirmation of his guilty mind when his nefarious activities became common knowledge between the parties. His “selling” of the land caused actual prejudice to the complainants in the five counts. He acted deceitfully towards all the complainants as well as his step-sister. He was correctly convicted of fraud. It is for these reasons that we did not consider the concession by the National Prosecuting Authority to have been advisedly made. We therefore disregarded the views expressed in the notice to the registrar of this court made in terms of s 35 of the High Court Act, [Chapter 7:06] and confirmed the conviction. The appeal against conviction therefore fails. Mr Murambatsvina conceded that in fact the conviction is proper. His argument thereafter was directed at the sentence. He proposed a reduction in the effective sentence and suggested a fine equivalent to twice the amount of actual prejudice suffered by the complainants coupled with a twelve month imprisonment wholly suspended on condition of restitution towards the complainants. In our view there is no merit in imposing a fine of that magnitude. Suffice it to state that a custodial sentence is eminently merited. A portion of such a term of imprisonment would be suspended on the terms suggested by counsel. We therefore propose to set aside the sentence imposed in the court a quo and substitute it with the following: “All counts are treated as one for the purpose of sentence. The accused is sentenced to 3 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition the accused is not, during that period, convicted of any offence of which dishonesty is an element for which he is sentenced to imprisonment without the option of a fine. The remaining one year is suspended on condition the accused makes restitution in favour of each complainant for the sums equivalent to the amounts of money accused actually received from each as set out in the charge sheet. Restitution is to be made through the Clerk of Court, Harare, in full on or before 31 December 2015.” CHIWESHE JP agrees ______________________ Jarvis Palframan, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners