S v Kuruneri (CRB 73 of 2005) [2007] ZWHHC 59 (31 July 2007)

HH 59-2007 CRB 73/05 THE STATE versus CHRISTOPHER TICHONA KURUNERI HIGH COURT OF ZIMBABWE MAVANGIRA J HARARE, 16 May 2005, to 10 June 2005, 5, 7, 12-14, 21 September 2005; 23 February 2006, 10 June 2006, 13-15, 25 September 2006; 2, 4 October 2006; 16, 19, 22-24, 26, 31 January 2007; 1, 6, 7 February 2007; 27 July 2007 and 1 August 2007 Assessors Messrs Msengezi and Mr Mashanda Mr Jagada, for the State Mr Samukange, for the accused MAVANGIRA J: This is an application by the accused for discharge at the close of the State’s case in terms of s 198(3) of the Criminal Procedure and Evidence Act (Chapter 9:07). The application relates to the charges in counts 2 and 3 and the alternatives and also to counts 4,5, 6 and 7. The accused pleaded guilty to, and was convicted of the charge in count 1, a contravention of the Citizenship of Zimbabwe Act [Chapter 4:01] on which he is still to be sentenced. In count 2, the accused is charged with contravening s 5(1)(a)(i) of the Exchange Control Act [Chapter 22:05] as read with s 20(1)(b) of the Exchange Control Regulations, Statutory Instrument 109 of 1996 ”in that on dates to the prosecutor unknown but during the period extending from March 2002 to March 2004, and at Harare International Airport, Harare the accused, without the authority of the Exchange Control Authority, exported from Zimbabwe foreign currency amounting to US$582 611,99, British Pounds 34 471 and Euros 30 000, to South Africa which amounts he gave to Christopher Hayman, a Director for Venture Projects and Associates and also his Projects Manager in South Africa to use in reconstructing and developing one of accused’s properties, 38 Sunset Avenue, Llandudno, Cape Town, South Africa”. He is charged in the alternative, with contravening s 182 of the Customs and Excise Act [Chapter 23:02] “in that on (the) dates of the prosecutor unknown but during the period extending from March 2002 to HH 59-2007 CRB 73/05 March 2004 and at Harare International Airport, the accused unlawfully smuggled goods, namely foreign currency in the amounts of US582 611, 99, British Pounds 34 471 and Euros 30 000’. In count 3 the accused is charged with contravening s 5(1)(a)(i) of the Exchange Control Act, [Chapter 22:05] as read with s 20(1)(b) of the Exchange Control Regulations, Statutory Instrument 109/96 ‘in that on (the) dates to the prosecutor unknown but during the period extending from February 2002 to April 2004, at Harare International Airport, Harare the accused without the authority of the Exchange Control Authority, exported various amounts in foreign currency from Zimbabwe totalling 1 314 102,92 Rands, amounts which he deposited or caused to be deposited into his account number 9090528312 with ABSA Bank in South Africa’. He is charged in the alternative, with contravening s 182 of the Customs and Excise Act [Chapter 23:02] “in that on (the) dates to the prosecutor unknown but during the period extending from February 2002 to April 2004, and at Harare International Airport, the accused unlawfully smuggled goods, namely different amounts in foreign currency totalling 1 314 102, 92 Rands, amounts which he deposited or caused to be deposited into his account number 9090528312 with ABSA Bank in South Africa”. In count 4, the accused is charged with ‘unlawfully causing the Commercial Bank of Zimbabwe to telegraphically transfer ZAR 5,2 million to CB Niland and Partners Trust Account number 5005800916 with First National Bank, St Georges Mall Branch, Cape Town, South Africa, the said amount being payment to Dunmow Pty Ltd for the purchase of a property, house number 17 Apostle Road, Llandudno, Cape Town by the accused, when at the time of making such payment outside Zimbabwe he had no authority from the Exchange Control Authority’. In count 5 the accused is charged with contravening s 5(1)(i) of the Exchange Control Act, [Chapter 22:05] as read with s 11(1)(a) of the Exchange Control Regulations, S. I. 109/96, in that on 22 April 2002 at Llandudno, Cape Town South Africa, the accused, being a Zimbabwean resident, unlawfully made payment of ZAR 2,7 million to Tadant (Pty) Ltd, HH 59-2007 CRB 73/05 being the purchase price of house number 38 Sunset Avenue, Llandudno, Cape Town South Africa, when at the time of making such payment outside Zimbabwe he had no authority from the Exchange Control Authority. In count 6 the accused is charged with contravening s 5(1)(a) of the Exchange Control Act, [Chapter 22:05] as read with s 11(1)(a) of the Exchange Control Regulations S. I. 109/96 in that on 22 April 2002 at Llandudno, Cape Town, South Africa, the accused being a Zimbabwean resident unlawfully made payment of ZAR 2,5 million to Shirley Joy Bernstein for the purchase of Unit B Ocean View, Sea Point, Cape Town, when at the time of making such payment outside Zimbabwe, he had no authority from the Exchange Control Authority. Finally, in count 7, the accused is charged with contravening s 5(1)(a)(i) of the Exchange Control Act, [Chapter 22:05) as read with s 11(1) (a) of the Exchange Control Regulations, S. I. 109/96 in that on 3 February 2004 at Mercedes Benz, Claremont, Cape Town, South Africa, the accused being a Zimbabwean resident, unlawfully made payment of ZAR 547 743 to Mercedes Benz, Claremont as the purchase price of a Mercedes Benz ML 350 when at the time of such payment outside Zimbabwe, he had no authority from the Exchange Control Authority. It is the defence’s contention that there is no evidence justifying the placing of the accused on his defence as there is no direct evidence that the accused exported or smuggled the said foreign currency out of Zimbabwe to South Africa. The State, the defence contends, seeks to rely on circumstantial evidence on the basis of which it urges the court to make an inference. It is contended that on the evidence led by the State, the inference sought, that the accused must have exported or smuggled or did export or smuggle the said foreign currency is not the only reasonable inference that presents itself or that could be drawn. The defence pointed to the lack of evidence before the court that the accused acquired the foreign currency in Zimbabwe. Mr Samukange gave three different possible scenarios which, he contended, had they been established by any State witnesses, would then have assisted the State in establishing a prima facie HH 59-2007 CRB 73/05 case against the accused. The first scenario, he said, would be where the witness would tell the court that, being ordinarily resident in Zimbabwe, he sold foreign currency to the accused in Zimbabwe and that he (the witness) was then paid in Zimbabwean dollars, after handing the foreign currency to the accused. If the accused thereafter, upon being questioned by the authorities, failed to explain how he had dealt with the foreign currency, then there might be justification to assume that the foreign currency that he was found with in Cape Town was the foreign currency referred to by that witness and that therefore the accused must have illegally exported or smuggled it to South Africa. The second scenario, he contended, would be where there is documentary evidence indicating that the accused received a certain amount of foreign currency in the country, but its whereabouts cannot be traced and at some stage, the accused is then found with foreign currency in South Africa. The third scenario, Mr Samukange said, would be where a witness tells the court that although not resident in this country, either whilst on a visit to Zimbabwe or while outside Zimbabwe, he met the accused who purchased a certain amount of foreign currency by using a tool or instrument to pay in Zimbabwe dollars. In such scenarios, he submitted, the court would be justified to suspect the accused and thus put him on his defence so that he may assist in establishing how the foreign currency was exported out of Zimbabwe. Mr Samukange submitted that in the absence of any evidence showing any of the given sce