Agnes Simon v Angelique Traquino & 5 Ors

1


                                                                                       HH 68-12
                                                                                      HC 259/12

AGNES SIMON
versus
ANGELIQUE TRAQUINO
and
INSPECTOR MUKANDI J
and
THE OFFICER-IN-CHARGE
(CID SERIOUS FRAUD SQUAD)
and
THE OFFICER COMMANDING
(CID SERIOUS FRAUD SQUAD)
and
THE COMMISSIONER GENERAL
(ZIMBABWE REPUBLIC POLICE)
and
THE CO-MINISTERS OF HOME AFFAIRS


HIGH COURT OF ZIMBABWE
CHATUKUTA J
HARARE, 8 February 2012


URGENT CHAMBER APPLICATION

Mr. N. Mugiya, for the applicant
Mr. J Mandevere, for the 1st respondent
Mr. T. O. Dodo, for the 2nd-6th respondents


       CHATUKUTA J: This is an urgent application for a mandamus van spolie. The facts
relied upon by the applicant are as follows:

       The applicant and the 1st respondent are acquaintances. Sometime in November 2011,
the 1st respondent approached the applicant seeking help to find a buyer for her cement. The
applicant facilitated an arrangement between the 1st respondent and an unidentified third party.
The 1st respondent and the third party concluded their transaction. The 1st responded requested to
use the applicant’s bank account for the deposit of the purchase price as she did not have a bank
account of her own. The third party deposited the money into her account. The 1 st respondent
indicated that there was a balance owing and demanded the balance from the applicant. The
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applicant refused to be involved in the dispute between the 1 st respondent and the third party.
The 1st respondent threatened to have her arrested.

       On 21 December 2011 the police came to her house and arrested her. They unlawfully
seized her vehicle a Honda, Oddessy vehicle, registration No. ACH 1773. The police did not
have a warrant of seizure authorizing them to seize the vehicle. They also seized the registration
book for the vehicle and a Nokia E68 without her consent or court order. She was severely
assaulted by the police, and in particular by the 2 nd respondent, during the period when she was
in police custody.   The 2 nd respondent assaulted her so as to induce her to sign a document
relinquishing her ownership of the vehicle to the 1 st respondent. She failed to sign the document
because her hands were swollen from the assault. On 23 December 2011 she was taken to court
for remand. The 2nd respondent threatened that if she failed to sign the document she would be
sentenced to death. As a result, she proceeded to sign the document before she was placed on
remand.

       She first became aware of the fact that the police had released the vehicle to the 1 st
respondent when to her surprise she saw the 1st respondent driving the vehicle at court on the day
she was placed on remand. On 8 January 2012 she again saw the 1 st respondent driving the
vehicle with a sign stuck to its window advertising the vehicle for sale hence the present
application.

       The 1st respondent disputed all the allegations made by the applicant. She stated that she
entered into a business arrangement with the applicant for the procurement of cement for resale.
As both parties did not have the capital to purchase the cement, she approached her father, Peter
Traquino, who lent them US$13 500. The money was deposited on 10 September into the
account of Sparkles Services (Pvt) Ltd. The details of that account were furnished by the
applicant as she is the one who was to facilitate the procurement of the cement. In November
2011 the applicant caused the procurement of 600 bag of cement valued at US$6 473.          They
shared equally the bags of cement although the cement remained at the applicants premises. The
applicant failed to procure the remaining bags of cement. Although the applicant sold all the
bags of cement, she failed to account for the proceeds from the sale and the balance of the money
advanced to them by her father except for US$2 000.       It was her view that the applicant had
purchased the Honda Oddessy with her share of the sale proceeds and the remaining amount
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from the loan. She admitted causing the arrest of the applicant after the applicant failed to
account for the money.

       She further stated that after the arrest of the applicant and whilst the applicant was still in
police custody, she was approached by one Godfrey Munyamana who identified himself as the
applicant’s husband.     Godfrey Munyamana invited her to Sparkles Services where he made a
proposal to settle what was owed to her and her father on condition that she withdrew charges
against the applicant. On the same day that the applicant was placed on remand and released on
bail, she entered into a written agreement with the applicant in terms of which the applicant was
to sale her vehicle to her for the sum of US$8 000. The applicant undertook to pay the balance
due by 28 December 2011.        The applicant confirmed the sale with an affidavit restating the
terms of the agreement of sale. She indicated her willingness to the police to withdraw the
charges and the vehicle and registration book were released to the applicant on 24 December
2011. The applicant in turn handed over possession of the vehicle and the registration book to
her. Armed with the registration book and the agreement of sale she effected transfer of the
vehicle into her name and is now the owner of the vehicle.

       The 1st respondent denied that she had approached the applicant for assistance to dispose
of any cement and that she did not hold a bank account. She indicated that she was a holder of
three bank accounts, one with Kingdom Bank and two with Barclays Bank.

       The 2nd respondent denied taking the applicant’s cellphone. He however admitted seizing
the applicant’s vehicle in terms of the law following the complaint by the 1 st respondent that the
vehicle had been purchased with proceeds of a crime. He contended that according to an
agreement in applicant’s possession, the applicant had purchased the vehicle from one Tauro
Vasco on 20 September 2011. This was after Peter Traquino had on 10 September 2011
deposited into Sparkle Service (Pvt) Ltd bank account the loan for the purchase of cement. The
applicant had not accounted for the balance of the loan to the 1 st respondent neither had she
repaid the loan.       She had also not accounted for the proceeds from the sale of the 1 st
respondent’s bags cement. He therefore suspected that the applicant had used the balance of the
loan and the proceeds of the sale to purchase the vehicle.
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       His suspicion was bolstered by the fact that the applicant also had in her possession an
agreement of sale for the same vehicle purportedly entered with the same Tauro Vasco dated 1
September 2011. He formed the view that this agreement was a fraud because the agreement
reflected the registration number ACH 1773. However, the registration book in the applicant’s
possession reflected that the vehicle had first been registered in Zimbabwe on 19 September
2011 in Tauro Vasco’s name. It is then that it was accorded the registration number ACH 1773.
He could not understand how an agreement dated 1 September 2011 would reflect a registration
number before it had been officially registered in Zimbabwe.

       He disputed the allegations by the plaintiff that the police handed possession of the
vehicle to the 1st respondent on or before 23 December 2011.       He stated that the vehicle was
only released to the applicant on 24 December 2011 and attached to the notice of opposition a
copy of the relevant page from the Exhibit Book. The vehicle had been released to the applicant
following her agreement with the 1st respondent. The applicant then released the vehicle to the
1st respondent. He denied forcing the applicant to sign any document and contended that the
only documents that she signed before him and did so freely and voluntarily, were the Exhibit
Book and a warned and cautioned statement.

       The basis of the applicant’s application is that the police acted unlawfully in that they did
not have a warrant of seizure when they seized her property. The unlawful seizure was an act of
spoliation. She further contended that the police also released her vehicle directly to the 1 st
respondent without her consent. The purported agreement of sale was a fraud in that she either
did not sign it and if she did, she did so under duress. She further submitted that the 2 nd
respondent also unlawfully took her cellphone.

       The respondents’ contention is that vehicle was lawfully seized from the applicant as it
was suspected to have been purchased with the proceeds of a crime.               The vehicle was
subsequently released to the applicant who in turn voluntarily relinquished possession to the
respondent pursuant to an agreement of sale between the parties.       The 2 nd respondent denied
seizing the applicant’s cellphone.

       In order for the applicant to succeed in her action, she must show that she was in peaceful
and undisturbed possession of the vehicle and that she was unlawfully deprived of the
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possession. (see Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-Operative & Ors 1999
(2) ZLR 19 (SC) at 21E-H and Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79E-F.) One of
the defences available to an action for spoliation is that the applicant consented to the deprivation
and the onus rests with the applicant to prove lack of consent.

          It appears from the pleadings and the submissions of the parties that there are disputes of
fact as to how the applicant lost possession of the vehicle to the 1 st respondent.      Both parties
were however agreed that the disputes would be resolved on the papers. I accordingly have
adopted a robust approach and dealt with the disputes of fact on the basis of the papers filed of
record.

          The question of the cellphone can disposed of at the outset. It is entirely devoid of merit.
Apart from her say so, there is no other evidence before the court that the applicant was in
possession of a cellphone, neither has it been established that either the 1 st or the 2nd respondent
took the cellphone.

          It is however not in issue that the applicant was in peaceful and undisturbed possession of
her vehicle and the vehicle registration book. What is in issue is whether or not the applicant
was unlawfully deprived of the property.

          In his submissions that the seizure of the applicant was unlawful, Mr. Mugiya relied on s
50 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the Act).             S 50 of that Act
provides for the seizure, by virtue of a warrant issued by a magistrate or a justice, of an article
that the police believe would provide evidence of the commission of an offence. However, the
applicant overlooked that s 50 is subject to s 51 of the Act.        S 51 provides for a search and
seizure without a warrant where the police officer believes that a warrant would be issued in
terms of s 50. It is my view that the police did not act outside the law because they are permitted
under s 51 of the Criminal Procedure and Evidence Act to seize property without a warrant on
the conditions spelt out in that section and more particularly where they believed that a warrant
would have been issued authorizing or as it were ratifying the seizure. The concession by Mr.
Dodo, the 2nd -6th respondents’ counsel, that the search was illegal was therefore misplaced.

          Assuming I am wrong in holding that the seizure was legal by virtue of s 51(1) of the
Act, it appears to me that at the time that the applicant lost possession, the police had regularized
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their unlawful conduct by returning the vehicle to the applicant on 24 December 2011.         The
applicant has not placed before the court evidence to disprove the police’s submissions that the
vehicle was returned to the applicant before she handed the same to the 1 st respondent. The copy
from the exhibit book clearly shows that the vehicle was returned to the applicant. She signed in
the exhibit book and the released was witnessed by D/A/I Mukandi and D/Sgt Gwatidzo.
Without professing to be a handwriting expert, the signature in the exhibit book appears to be
that of the applicant as apparent on the founding affidavit and the other documents to be
discussed later that the applicant is alleged to have signed.

       The next issue for determination is therefore whether or not the applicant consented to the
deprivation by the 1st respondent.      In support of the consent, the respondents produced the
agreement of sale purportedly entered into between the applicant and the 1 st respondent and an
affidavit attested, purportedly so, by the applicant restating the conditions of the sale. Both
documents bear a signature which is similar to that of the applicant.       The affidavit was duly
commissioned by a commissioner of oaths on 23 December 2011, the same day that the applicant
was released on bail. The offices of W. C Maseko appear on the affidavit to be situate at Shop
18 Ximex Mall, Angwa Street which is nowhere near the police station where the applicant was
detained or the court. The applicant could not explain how her signature appeared on the face of
the affidavit and how, when and where the affidavit was commissioned. She did not contend that
she was taken by the police to W. C. Maseko’s office neither does she dispute that she appeared
before a commissioner of oaths. It is therefore presumed that the affidavit was attested to by the
applicant, was commissioned in her presence and reflects her willingness to part with her
vehicle.

       It was recognized in Botha & Anor v Barrett (supra) that an agreement between the
parties constitutes evidence of consent. It is my view that the applicant failed to discharge the
onus on her that she did not consent to the release of the vehicle to the 1st respondent

       It would be remiss of me not to consider the non-disclosure of material facts by the
applicant and at times her dishonesty. The applicant did not disown the signatures on the various
documents referred to above. She simple stated that she was asked to sign some documents
when she appeared at court.
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       Turning to the warned and cautioned statement, the statement confirms the 1 st respondent
assertion that the two had entered into a business deal to purchase cement. The statements reads
as follows:

       “I do not admit to the charges being preferred against me. Myself and Angelic were given a loan
       by Angelic’s father and we wanted to use the money to buy cement for resale. We wanted to pay
       back the loan after one month. We later failed to get the cement in time as we expected ad ( sic)
       when we got it we only got 600 bags instead of 1200 bags we had paid for. I was later refunded
       the money for the remaining 600 bags and I went and bought granite stones for making
       tombstones hoping to raise money to pay back Angelic’s father within the period we had agreed.
       I used the other money amounting to US$5 000 to buy a Honda motor vehicle registration
       number ACH1773 from Taurai Vasco. I failed to raise money by selling the tombstones as I had
       expected and I am still holding onto the tombstones.”

       The statement therefore commences with the applicant denying the charges and follows
with an explanation of the nature of applicant and respondent’s relationship. I do not believe that
the police would have asked her to sign a warned and cautioned statement in which she was
denying the allegations had they intended to falsely incriminate her. Upon inquiry from the court
as to the fact that the warned and cautioned statement confirmed the 1 st respondent’s version of
events, the applicant’s counsel confirmed the contents of the statement although denying that the
applicant signed the warned and cautioned statement.              The confirmation contradicted the
applicant’s averment in the founding affidavit that she only facilitated the sale of the 1 st
respondent’s cement.

       The respondents also produced a deposit slip of US$13 500 from the 1 st respondent’s
father, Peter Traquino dated 10 September 2011.                Her explanation for the deposit was
contradictory. In one breath her counsel confirmed that the money was a loan advanced in
pursuant to her business arrangement with the 1 st respondent. The story later changed and the
new explanation was that the money had been borrowed by Godfrey Munyamana from Peter
Traquino for the purchase of the cement from the 1st respondent. This was the first time the
identity of the person who allegedly purchased the cement from the 1 st respondent was disclosed.
It was also disclosed by the applicant’s counsel that Godfrey Munyamana was director in
Sparkles Services (Pvt) Ltd, the company which held the account in which the loan was
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deposited from Peter Traquino. However, the applicant, through her counsel had earlier, in
response to the 1st respondents submissions that Godfrey Munyamana is the one who approached
her with a proposal that persuaded her to withdraw charges against the applicant, denied any
knowledge of Godfrey Munyamana. No explanation was advanced as to why the applicant had
denied knowledge of Godfrey Munyamana yet she had indicated that she is the one who
facilitated the arrangement between the said Godfrey Munyamana and the 1 st respondent for the
alleged sale of the 1st respondent’s cement.

        The respondents produced two agreements dated 1 September 2011 and 20 September
2011 purportedly being agreements between the applicant and one Tauro Vasco who sold her the
vehicle. Both agreements bore the same signatures for both the applicant and Tauro Vasco
despite the fact that the applicant professed ignorance of the agreement dated 20 September
2011.    What is notable is that the agreement dated 1 September 2011 bears the registration
number of the applicant’s vehicle and no other details of the vehicle such as the chasis number,
the engine number and the year of manufacture as reflected on the agreement dated 20
September 2011.      However, the applicants produced a copy of the registration book which
reflects that the vehicle was first registered in Zimbabwe on 19 September 2011.             The
explanation for this apparent discrepancy that a vehicle sold on 1 September 2011 and only
registered on 19 September 2011, would bear a registration number only made available on the
latter date was mind boggling. The explanation given by Mr. Mugiya was that when the
Zimbabwe Revenue Authority (ZIMRA) clears the vehicle for duty purposes, ZIMRA gives a
registration number for the vehicle. Upon inquiry in terms of what law ZIMRA would be
responsible for the registration of a vehicle, he explained that in fact parties who enter into an
agreement of sale of a vehicle have an option whether or not to have the vehicle accorded a
registration number pending conclusion of the clearance process but before payment of the full
purchase price. ZIMRA would withhold the number plates until clearance is completed. He still
could not explain the law in terms of which ZIMRA is empowered to register any vehicle.

        It appears to me that the applicant could not have bought vehicle from Tauro on 1
September 2011 because motor vehicle had not yet been registered in Zimbabwe. According to
the vehicle registration book, which is prima facie proof of ownership of a vehicle, the vehicle
was first registered in Zimbabwe on 19 September 2011. The only conclusion that the police
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arrived at, which I agree with, is that the agreement of 1 st September 2011 was drawn up to
mislead the police and the court by creating an impression that the vehicle had been purchased
before the deposit of funds by Peter Traquino on 10 September 2011. This appears to have been
intended to show that the applicant did not use the money advanced by the Peter Traquino to
purchase the vehicle. If the 1 September 2011 agreement was the authentic agreement, the
applicant could have obtained an affidavit from Tauro Vasco explaining which of the two
agreements is the authentic document.

        The applicant appeared to be a very sophisticated person as submitted by Mr. Mandevere
and Mr. Dodo, who should have known that she could not be sent to jail for failing to sign a
document or for the allegations that she was facing. In fact she was able to go to the Police
Headquarters to lodge a complaint against the 1st and 2nd respondent for the treatment they
subjected her to. Therefore her explanation that she was forced to sign any document does not
appear to be true.

       The law is clear on how to deal with dishonest parties.

       In Graspeak Investment P/L v Delta Corporation P/L & Anor, supra, at 555C-E NDOU J

had this to say:

       “The courts should, in my view, discourage urgent applications, whether ex parte or

       not, which are characterized by material non-disclosures, mala fides, or dishonesty.

       Depending on the circumstances of the case, the court may make adverse or

       punitive orders as a seal of disapproval of mala fides or dishonesty on the part of

       litigants. In this case, the applicant attempted to mislead the court by not only

       withholding material information but by also making untruthful statements in the

       founding affidavit.    The applicant’s non-disclosure relates to the question of

       urgency. In the circumstances, I find that the application is not urgent and dismiss

       the application on that basis.”


In the present case the applicant approached the court alleging that the 1 st respondent

had despoiled her when in fact the evidence indicates that the applicant entered into an
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agreement in terms of which she voluntarily relinquished possession of the vehicle and

the registration book. Some of the oral submissions were at variance with the applicant’s

founding affidavit and more particularly the relationship between the applicant and the 1 st

respondent giving rise to this application.


       It is my view that the applicant is not entitled to the relief sought. The application is
accordingly dismissed with costs.




Mupindu and Mugiya Law Chambers, applicant’s legal practitioners
Civil Division, 2nd to 6th respondents’ legal practitioners