S v Sigauke and Another (831 of 2022) [2022] ZWHHC 831 (7 November 2022)

1 HH 831-22 CA 221/22 PETER SIGAUKE and ENOCK MUKWEKWE and THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE, 31 October & 7 November 2022 Criminal Appeal G M Unzemoyo, for the applicants C Muchemwa, for the respondent CHIKOWERO J: 1. This is an appeal against the whole judgment of the Magistrates Court in terms whereof the appellants were convicted of 3 counts of criminal abuse of duty as public officers as defined in s 174(1)(a) of the Criminal Law Code and, with all counts treated as one for the purposes of sentence, each appellant was sentenced to 36 months imprisonment of which 12 months imprisonment was suspended for 5 years on the usual conditions of good behaviour. FACTUAL BACKGROUND 2. The trial court found that the appellants, who were, respectively, the Chief Executive Officer and the Planning Officer of Mutoko Rural District Council (“council”) at the material time had, on 3 occasions, illegally created and sold stands to Gabriel Karimazondo, Tinashe Mazarura and Sarah Chipungu. 3. It was common cause that the pieces of land in question belonged to Council. 4. That the appellants had acted contrary to and inconsistent with their duties as Chief Executive Officer and Planner and that their purpose in creating and selling the stands was to show favour to the three purchasers was borne out by the following. Proper procedures were not followed in disposing of the land. Council never resolved to subdivide and sell the land. It did not advertise that it was proposing to subdivide and sell the land. The HH 831-22 CA 221/22 purchase price paid by Karimazondo, Mazarura and Chipungu was not remitted to council. Instead, the second appellant received that money and shared it with the first appellant. No receipts were issued to the three purchasers. 5. Since no advertisements were flighted before the land was sold to the three persons already mentioned, the appellants’ intention was to show favour to the former as they did not compete with anybody before the sales were effected. 6. The appellants’ defence that they lawfully disposed of the land to the trio, via the Ease of Doing Business Concept, was found to be manifestly false. What the appellants said was this. Full council resolved to delegate powers to management to enter into lease agreements with those who needed commercial stands on the piece of land on which Chinzanga Bar stood. Such lessees would put up temporary structures. They would then operate from those structures, rent-free, for 5 years. Thereafter, council would take over the structures without paying any compensation to the former lessees. It was in terms of this Build Operate and Transfer model that the management committee of council, of which the appellants were members, agreed to lease the stands in question to Karimazondo, Mazarura and Chipungu. In short, the appellants contended that they, on behalf of Council, let the stands in question to Karimazondo and his two colleagues. THE GROUNDS OF APPEAL AGAINST THE CONVICTION 7. Essentially, the appellants attack the decision to convict on the following bases. Firstly, that the trial court made findings of fact without assessing the credibility of 10 out of the 13 state witnesses, that it did not consider all the evidence and that it assessed the evidence on a piece-meal basis. Secondly, that the court did not exclude the danger of false incrimination of the appellants by the state witnesses. THE DISPOSITION OF THE APPEAL AGAINST THE CONVICTION 8. An appellate court will not lightly interfere with factual findings made by a trial court unless such findings are outrageously irrational and not consistent with the evidence led. Where factual findings are impugned on appeal, the applicable principles include the following, per State v Mashonganyika 2018(1) ZLR 217 at 217H to 218E: • “where there has been no misdirection by the trial court, the presumption is that the conclusion is correct, the appeal court will only interfere and reverse the trial court’s findings where it is convinced that the finding is wrong; HH 831-22 CA 221/22 • • • if the trial court misdirected itself and the misdirection seriously affected the court’s view of the appellant’s credibility, the appeal court should ignore the lower court’s finding and approach the appellant’s evidence as it stands on the record and see whether the evidence on the record justifies the conviction; there may be a misdirection of fact by the trial court where the reasons are either on their face unsatisfactory or where the record shows them to be such, there may also be a misdirection where though the reasons as far as they go appear satisfactory, the trial court overlooked other facts or probabilities; an appeal court should not seek anxiously to discover reasons adverse to the conclusions of the trial court. No judgment can ever be perfect and all-embracing. Simply because something was not mentioned, it does not mean that it was not considered. See State v Swanhawk (Pvt) Ltd 1973(2) RLR 70, citing R v Dhluwayo and Anor 1948(2) SA 677(A) at 705-6.” 9. We think that the appellants are attacking the judgment rendered by the Magistrates Court on the basis that it is not as detailed as they would have expected in view of the sheer volume of the evidence placed before that court. That to us is to promote form over substance. This is why. The respondent’s case was simple and straightforward. It was that the appellants, taking advantage of the concept of Ease of Doing Business and their positions in council, had illegally created 3 stands out of Council land, sold those stands and pocketed the proceeds. They favoured the purchasers because due process was not followed in disposing of the stands. The trial Court had the benefit of documentary evidence against which to assess the probabilities and credibility of those who testified before it and, looking at the evidence as a whole, to determine the proved facts, if any, and draw inferences. 10. The bulk of Mr Unzemoyo’s submissions was designed to demonstrate that there were inconsistences, imperfections and inadequacies in the evidence of the various state witnesses. Counsel pointed at what he argued were instances of such. But it must not be forgotten that imperfections, inconsistencies and contradictions must go to the root of the matter if they are to have the effect of vitiating a conviction. See State v Lawrence and Anor 1989(1) ZLR 29(S) 11. We agree with Mr Muchemwa that the trial court did not misdirect itself in finding that the appellants created three stands out of the council land on which Chinzanga Bar stood, illegally sold those commercial stands, one each to Karimazondo, Mazarura and Chipungu and pocketed the proceeds. In doing so, they criminally abused their duty as public officers HH 831-22 CA 221/22 and favoured the three purchasers. The law governing sale of council land was not complied with in disposing of the land in question. 12. It was not in dispute that the three commercial stands were disposed of to Karimazondo and two others. 13. What the trial court had to resolve was whether such disposal was through sales effected by the appellants themselves. If the answer was in the affirmative, the decision to convict was inevitable. 14. On the other hand, if the trial court found that it was reasonably possibly true that the appellants did not sell the land but that they had, as employees of and acting on behalf of Council, merely let the land to Karimazondo and the two others, it had to acquit. 15. There was overwhelming evidence that the appellants sold the land. 16. Despite the absence of subdivision diagrams three stands were created out of an already existing council stand. 17. Karimazondo, Mazarura and Chipungu gave detailed testimony on the circumstances of their purchase of the stands. Such evidence included the amounts paid by each and whom they handed over the same to. Their agents corroborated them. Any variances relating to the actual hand that delivered any particular portion of the purchase price to the second appellant are in the nature of niceties. They do not detract from the fact that the appellants connived to and proceeded to sell the pieces of land in question to the three purchasers. 18. Despite the three demanding receipts, the second appellant never issued these. 19. Instead of issuing receipts, the first appellant subsequently issued offer letters to Chipungu and Karimazondo. The one was issued on 26 August 2019 with the other seeing the light of day on 21 October 2019. Each, consisting of one short sentence, confirmed that the named beneficiary had been offered a commercial stand at “stand number 6989 Mutoko after full payment” (underlining is ours). The first appellant signed one of the offer letters in his capacity as Chief Executive Officer of Council while the second appellant signed the other on behalf of the former. 20. Surprisingly, the offer letters did not disclose the quantum of the “full payments” effected by Karimazondo and Chipungu. HH 831-22 CA 221/22 21. All the same, they serve as independent pieces of documentary evidence confirming that Karimazondo and the two others were truthful in testifying that they bought commercial stands from the second appellant and paid the purchase price to him. The appellant’s signatures on the offer letters signify that. 22. The offer letters are evidence of the collusion between the appellants. It was not grossly irrational for the trial court to conclude that the offer letters were authored and signed pursuant to the sale and payment for the pieces of land in question. 23. In fact, the offer letters demonstrate the falsity of the appellants’ defence that they let the land in question, free of charge, to the three and that they did so on behalf of council. The offer letters could not be speaking to full payment when such payments were not to be made in the first place. 24. Indeed, even going by the evidence on record, we are amply satisfied that Karimazondo, Mazarura and Chipungu were correctly believed in testifying that they commenced constructing permanent structures on the land in question because they had purchased those pieces of land. 25. The first appellant’s then Personal Assistant was correctly believed. He testified that at a time when the matter was under police investigations the first appellant instructed him to prepare back-dated lease agreements relating to the stands already allocated to Mazarura and Karimazondo. The “Mazarura” lease agreement is dated 2 July 2019 while the “Karimazondo” lease agreement is dated 5 July 2019. The supposed lessees testified that although they signed those “agreements” that still did not make sense to them because they had already bought and fully paid their purchase prices for the stands. Karimazondo already held an offer letter, which was neither cancelled nor withdrawn. 26. There can be no doubt that the appellants were trying to cover their tracks by causing Karimazondo and Mazarura to sign back-dated lease agreements. If Karimazondo’s lease agreement was not back-dated why did the first appellant find it necessary, more than three months later, to sign an offer letter in favour of a person who already held rights and interest in the same piece of land in terms of a lease agreement? The trial opened and closed without the first appellant answering that crucial question. It behoved him to tender an explanation. HH 831-22 CA 221/22 27. In respect of Chipungu, the only document issued and signed by the first appellant was the offer letter of 26 August 2019. She was not issued with any lease agreement. The trial court properly found that she had bought the council stand from the appellants and paid the purchase price to them, even though at the actual point of sale she had only interacted with the second appellant. First appellant’s involvement in the crime manifested through the offer letter. 28. For Mazarura, no offer letter was issued. That is immaterial. His evidence was otherwise on all fours with those of the other two. We reiterate that no receipts were issued to the three purchasers and that all were constructing permanent structures on the commercial stands in question when councillors stepped in to halt such activities on noting that council had neither resolved to nor sold the land in question to them. 29. It may very well be that council had resolved to adopt the Ease of Doing Business Concept on 7 August 2017. Even if it were accepted that at a Management Meeting held on 8 May 2019 the members present agreed that stands at Chinzanga Bar be let to business persons that was no licence for the appellants to out-rightly sell council land and pocket the proceeds. 30. The appeal against the conviction is wanting in merit. THE APPEAL AGAINST THESENTENCE 31. We are satisfied that the trial court properly exercised its discretion in assessing an appropriate sentence. 32. It gave sound reasons for excluding a non-custodial sentence. 33. It did not over-emphasise the prevalence of the offence and the need for a deterrent sentence. 34. We do not agree that it underestimated the person of either appellant. 35. The sentence of 36 months imprisonment, a third of which was suspended on the customary conditions of good behavior, induces in us no sense of shock at all. 36. There is a long line of cases stressing the need to adequately punish those convicted of offences involving corruption. The point is there made that deterrence and public indignation are the factors which must predominate above all others in the assessment of the sentence. See for example State v Ngara 1987 (1) ZLR 91 (S) at 101C; State v HH 831-22 CA 221/22 Mukwezva 1992(2) ZLR 283(S). Counsel for the appellant did not draw our attention to any case authorities indicating that there now is a different approach to sentencing in a matter such as the present. We are not aware of any. 37. The appeal against sentence is without merit. ORDER 38. In respect of both appellants, the appeal be and is dismissed in its entirety. CHIKOWERO J:…………………… ZHOU J:…………………………..... Musara, Mupawaenda and Mawere, appellant’s legal practitioners The National Prosecuting Authority, respondent’s legal practitioners