Socrates Chenjerai Mugari Tsapo v The State

### Preamble
1
HH 564-18
CA 812/16
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SOCRATES CHENJERAI MUGARI TSAPO

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE  & WAMAMBO JJ

HARARE, 11 & 25 September 2018

Criminal appeal

R Kwenda, for the appellant

R Chikosha, for the respondent

HUNGWE J: The appellant is the director and alter ego of Tsapo Plumbing and Construction (Pvt) Ltd. He was charged with the crime of fraud (six counts). After a trial, he was convicted and sentenced to a total of 48 months imprisonment which was suspended on condition of good behaviour restitution and community service.

Dissatisfied, the appellant appealed to this court against both conviction and sentence. The appellant identified the grounds of appeal as falling into two broad categories. In the first category the issue is whether the court a quo erred in finding that the essential elements for the crime of fraud had been proven at trial. In the second broad category appellant raises the issue whether the trial was marred with such gross irregularities as would render it unfair thereby rendering the conviction unsafe.

Mr Kwenda, for the appellant, argued that there was no evidence that the appellant forged the invoices which formed the basis of the payment subject of the charges he faced. This was an internal process which he had no control over. As he had carried out the works, he was properly paid. It is important to recall however, when considering this ground, that the charge of fraud was not based on the alleged forgery of the signatures. It was squarely founded on the fact that the appellant had submitted invoiced claiming that he was entitled to payment for services rendered, when in fact he had not rendered any services but was however paid for work allegedly done. It was only one facet of the evidence of the falsity of the claims paid to the appellant that the signatures were not authentic. There were no supporting documents, which he would have been furnished with by the complainant, prior to executing the work. The charge recites that he, the appellant, generated fraudulent invoices, which he tendered to the complainant claiming that he had rendered services and therefore payment was due.

In count one four invoices were relied on, in count two to four, one invoice each was relied on. It is on the basis of these invoices that he had completed and filed claims which were honoured by the complainant company. It later emerged that in fact the appellant had not rendered any services which would have entitled him to payment.

Fraud is committed when any person intending to deprive another makes a misrepresentation intending to deceive another person or realising that there is a real risk or possibility of deceiving another person and intending 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 on the misrepresentation to his or her prejudice (s36 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23].

See also Attorney-General v Paweni Trade Corp (Pvt) Ltd & Ors 1990 (1) ZLR 24 (SC); S v Sithole 1997 (1) ZLR 283 (SC).

What must be proved, as an element of mens rea, is the knowledge of the falsity of the documents allegedly presented by the appellant to the complainant in the present matter. It fell to be shown during trial that the appellant intended that the complainant should act on the false documents or realised that there was a real risk that the complainant would act upon the false documents to its prejudice. The appellant in this case presented false invoices in which he claimed he had done work and therefore payment to him was due. It does not matter, to my mind, that there were other processes in the form of internal approvals before payment could be made. As long as the presentation was made with the knowledge that no service had been rendered (and therefore no payment was due to him) then the mental element of the offence was satisfied.

Further the contention that there was no proof of the actus reus has no merit. That element was met by the physical presentation of the document on each occasion, which, to his knowledge, told a lie about itself. The appellant knew that were the complainant’s agents to act on it, which they did, complainant would suffer prejudice represented by the sum falsely claimed on the invoices.

In a well-reasoned judgment the court a quo found that despite his claims that he had done work at the complainant’s insistence and request, that claim was false. An inspection in loco confirmed the falsity in one of the claims.

This ground of appeal therefore fails.

As for the general ground of appeal that the court a quo failed to explain the provisions of ss 188, 189, 198 and 199, I find no evidence ex facie the record that the appellant failed to appreciate the explanation given to him during the trial. I appreciate however that it may well be impossible for any self-actor to fully grasp every facet of an explanation given during the hearing of the trial but the test for a fair trial consist of whether the trial was in accordance with real and substantial justice. It seems to me that the yardstick for this concept, whilst difficult to define, is easy to identify where it is absent.

In S v Dube 1988 (2) ZLR 385 the court considered circumstances where it would be appropriate for a trial court to advise an unrepresented accused of matters beyond those stipulated in section 271 (2) (b) of the Criminal Procedure and Evidence Act, [Chapter 9:07].

See also S v Chidawu 1998 (2) ZLR 76 (HC).

None of the matters discussed in the two cited cases arise in casu. If anything the explanations given were such that appellant was able to make an application for discharge at the close of the State case. It follows therefore that the explanations, such as they were, were sufficient enough for him to be able to mount a fair challenge to the allegations that he faced which were ultimately proved.

The court a quo was criticised, in this appeal, for pointing out that although the appellant had indicated that he had executed the works with two other employees, his failure to call them drew an adverse inference against him. The argument was that by this remark the court shifted the onus of proof to the appellant by requiring him to prove his innocence. On the contrary, the judgment of the court convicting the appellant was not predicated on this factor at all. The court was merely pointing out the likelihood of falsity to be drawn from a failure to seek corroboration of his claims. That, in my view, does not amount to shifting the onus to the accused to prove his innocence.

Section 199 of the Criminal Procedure and Evidence Act was cited as having been overlooked in the explanation given to the appellant. This must have been in error because it is of no application in the present matter. The appellant gave evidence in his defence. He answered all questions put in him. I find no basis for the claim that the trial proceeded unfairly. An accused does not have a right to put question to anyone at an inspection in loco. He is, however, entitled to cross-examine anyone who makes indications during such an inspection, either in situ or at the resumed hearing or trial. There is no indication that he was deprived of the right to cross-examine witnesses or what observations the court made at the inspection in loco.

Consequently this ground of appeal fails.

As for sentence the appellants did not seriously argue that the sentence was so harsh as to induce a sense of shock. There was no basis for any such argument as the appellant enjoyed a most lenient sentence in all the circumstances.

In the result the appeal is dismissed in its entirety.

WAMAMBO J: agrees ……………………………………..

Muvirimi Law Chambers, appellants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners