Stephen Chatukuta v The State

### Preamble
1
HH 531-25
HCHCR 2251/25
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STEPHEN CHATUKUTA

versus

THE STATE

HIGH COURT OF ZIMBABWE

ZHOU AND CHIKOWERO JJ

HARARE; 29 July and 8 September 2025

Criminal Appeal

E Mavuto, for the appellant

R Chikosha, for the respondent

CHIKOWERO J:

INTRODUCTION

[1]	For our purposes, s 38(1)(a)(i) and (ii) of the High Court Act [Chapter 7:06] enjoins this court to allow an appeal against conviction if it thinks that the judgment of the court before which the appellant was convicted should be set aside on the ground that it is either unreasonable or not justified having regard to the evidence.

[2]	We think that the judgment of the lower court convicting the appellant is unreasonable.  We think also that the conviction is not justified, having regard to the evidence.

[3]	We allow the appeal and quash the conviction.

PROCEEDINGS BEFORE THE LOWER COURT

[4]	The appellant was convicted of the crime of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the Magistrates Court sitting at Harare and sentenced to 36 months imprisonment the whole of which was suspended on certain conditions.

[5]	The body of the charge sheet reads:

“In that on the date unknown to the prosecutor but during the period between the 7th day of May 2021 and the 20th day of July 2021 and at Marimba Shopping Centre CHATUKUTA STEPHEN misrepresented facts to HERBET PARADZA that he was one of the directors for Lindura (Pvt) and MSC Collections which deals with the importation of motor vehicles and tippers and received US$22000 from the complainant towards the purchase of a Foden 32 cubic metre tipper truck whereas he knew very well that he was not going to purchase the said tipper truck.  When CHATUKUTA STEPHEN made the misrepresentation, he intended to deceive HERBET PARADZA and cause HERBET PARADZA to act upon the misrepresentation to his prejudice.  The misrepresentation caused an actual prejudice to HERBET PARADZA of US$22000.”

[6]	In material part, the outline of the state case reads:

“1.The complainant in this case is HERBET PARADZA a male adult who resides at …Chitungwiza…

2. The 1st accused person in this case is CHATUKUTA STEPHEN a male adult who resides at… Harare…

3. The 2nd accused person is CHATUKUTA MUNYARADZI who resides at … Harare and he is based, in the United Kingdom and he is still at large.

4. …

5. Sometime in March 2018 the complainant wanted to buy a tipper truck and he received information that the accused person had the capacity to buy the truck on his behalf.  The complainant and his nephew Simbarashe Mutete then met with the accused person at Marimba Shopping Centre, Belvedere Harare.

6. The accused person then told the complainant that he was a Director for a company called Lindura (Pvt) Ltd and MCS Collections that import motor vehicles from United Kingdom.

7. The accused person then quoted the complainant US$22000 for a Foden Model 32 cubic metre truck which he wanted including the duty fee.

8. The accused person then gave the complainant a Nationwide Bank sort code 070438UK which he said was his son’s account number based in United Kingdom and is the 2nd accused person in this matter.

9. The complainant then deposited US$20000 on 7th day of May 2018 and US$2000 on the 4th day of June 2018 through electronic transfer.

10. After making the full payment the complainant showed the accused person the proof of payment who in turn told the complainant that he will deliver the motor vehicle within three months.

11. The two accused person did not deliver the motor vehicle and kept on giving some excuses.

12. The total value stolen is US$22000 and nothing was recovered.

13. The accused person acted unlawfully.”

[7]	The complainant reported this matter at Harare Central Police Station in July 2021.  That is shown by the Crime reference appearing on the face of the charge sheet and the outline.  It is HARARE CENTRAL CR 1091/07/21 CR 44/07/21 CCU DR 44/07/21.  In any event, the complainant himself testified that he made a police report in 2021.

[8]	In outlining his defence, the appellant made the following assertions.  First, that he never misrepresented to the complainant as alleged.  Second, that he disputed telling the complainant that he is a director of Lindura (Pvt) Ltd and MSC collections.  Third, that he never gave the complainant the account number of his son (Munyaradzi Chatukuta) who is based in the United Kingdom.  Further, that he merely gave the complainant the phone number of Munyaradzi Chatukuta.  The appellant also made the following averments: that he did not take part in the importation of the Foden tipper and that the complainant was communicating directly with Munyaradzi Chatukuta in the United Kingdom.  The defence outline is also clear in the following respects.  The complainant’s report to the police in the United Kingdom that Munyaradzi Chatukuta had defrauded him by reason of failure to deliver the Fodden tipper was met with a response that the matter was civil.  Paragraphs 10 and 11 of the defence outline are telling.  They read:

“10. The complainant tried to sue the accused person’s son in the Uninted Kingdom to no avail.

11. Accused avers that complainant is trying to recover his money by falsely laying false charges against him hoping that Munyaradzi Chatukuta (his son) will pay him.”

[9]	The lower court convicted the appellant because it took the view that the complainant and his nephew were credible witnesses.  It thought their evidence accorded with the probabilities.  It said:

“Having established that the money was deposited into accused’s son’s account, the question then becomes how the complainant knew Munyaradzi.  The complainant said he was told by the accused that complainant should deposit the money in Munyaradzi’s account because he is the one in the United Kingdom but accused would facilitate the rest.  The court believes this evidence because it sounds unreasonable to me that they would meet simply for the purpose of giving each other a phone number.  A phone number can be given via a phone.  There was no need for them to meet for that.  What the court draws from the evidence is that they met to discuss all logistics.  In that meeting he was told about the company, he was told about the role of the accused.  In all this, he was actually convinced to proceed because accused would make sure that everything went well.  It was actually the accused who misrepresented to him that they would bring the truck just like how they imported 3 tippers for another lady.  Not so, the complainant would not have known about all that.

I am of the view that their meeting is the one that sealed the deal.  The fact that money was deposited into Munyaradzi’s account do not mean that accused had nothing to do with it.  Accused is the one who made sure that he deposits and even told him to come with receipts to go to a lawyer.  He is the one who again changed.  Why would he want to go all the way to do that if he was not involved?

The court rejects the defence’s position that the money was deposited into a Romanian’s account because the receipts tendered shows the accused’s son was the recipient.  The issue of the Romanians was vehemently denied by the complainant and the court believed him because he dealt with accused and accused’s son.  There is nowhere that the Romanians appear.  In any event the accused said accused’s son would buy vehicles from these Romanians therefore even on this deal, accused’s son was just to buy it from them and then brings it here.  He cannot say that complainant engaged with the Romanians because he did not know them.  Accused is the one who instructed the complainant to deposit the money.

The court is convinced that it was the accused who misrepresented to the complainant that they were capable of importing the vehicle.  Complainant acted upon such misrepresentation and paid US$22000.  The state managed to prove its case beyond reasonable doubt.  The accused cannot be divorced from this offence in the given circumstances.  The meeting could not have been for a phone number.  The only reason why complainant believed this was because he met the accused who gave him assurance.  Complainant never met Munyaradzi but accused.

The court accepts the evidence of the state in Toto.  The court rejects the defence given by the accused for the reasons already cited.”

THE GROUNDS OF APPEAL

[10]	In challenging the conviction, the appellant places reliance on five grounds of appeal.  They read:

“1. The court a quo erred in convicting the appellant on conduct which does not amount to a criminal offence of fraud but is merely the company’s contractual breach of failure to deliver the Foden tipper.

2. The learned magistrate misdirected herself in making a finding that appellant misrepresented to the complainant that he and his son had the capacity to import vehicles from United Kingdom.

3. The court a quo misdirected itself in concluding that the appellant met the complainant at Marimba shops to discuss all logistics regarding the transaction, yet there is no evidence on record to that effect.

4. The learned magistrate erred in deciding that appellant was the one who instructed the complainant to deposit money into his son’s account.

5. The court a quo misdirected itself in placing relevance on two electronic transfers done by complainant while in Kuwait yet they do not show appellant’s involvement in the transaction.”

DID THE COURT A QUO ERR IN FINDING THAT THE APPELLANT MADE THE MISREPRESENTATION IN QUESTION?

[11]	The answer to this question resolves the appeal.

[12]	The interaction between the appellant on the one hand and the complainant and Simbarashe Mutete on the other at Marimba Shopping Centre, Belvedere in 2018 was verbal.  It was not followed up by correspondence confirming what had transpired thereat.  In testifying on that interaction, the complainant said the following.  The appellant confirmed that he was Munyaradzi’s father; that appellant was a director of the two companies mentioned elsewhere in this judgment; that the appellant and his son, through those two United Kingdom based companies were in the business of importing vehicles into Zimbabwe from the United Kingdom and, critically, that the appellant and his son, using those companies as their vehicles, could import a motor vehicle for the complainant on condition the complainant paid US$22000 into an account nominated by the son with appellant handling all the logistics in Zimbabwe.  Mutete (the complainant’s nephew) testified to similar effect.  The appellant’s version was different.  Mutete introduced the appellant to the complainant as Munyaradzi Chatukuta’s father.  It was Munyaradzi, through his companies based in the United Kingdom, who was in the business of importing vehicles.  The appellant then gave the complainant Munyaradzi’s phone number.  This was to enable the complainant to communicate directly with Munyaradzi.  With that the appellant was not involved in whatever deal was struck, later, between the complainant and Munyaradzi.  The appellant never misrepresented that he was a director of the two companies and that, working together with his son, the two could import a Foden tipper for the complainant on payment by the complainant of the US$22 000.

[13] In our view, the prosecution and appellant’s evidence of what transpired at Marimba shops in 2018 were mutually destructive.  That in itself should have triggered the court a quo to be cautious in assessing the evidence.  The complainant, as was his nephew, were interested parties.  Our view is that the court a quo needed more evidence to lend credence to what they said before concluding that the defence of the appellant had been proved to be not only improbable but beyond reasonable doubt false.  We consider that the complainant and his nephew, on a careful reading of the record, were witnesses unworthy of belief.  Their evidence was were manifestly unreliable.  In fact, the only credible evidence on record is that adduced by the appellant.

[14]	The charge contains the calculated and manifest falsehood that the misrepresentation was made between 7 May 2021 and July 2021.  The reason for this falsehood was to explain why the complainant made a report of the fraud to the police as late as July 2021.  We are aware that the charge sheet was not drafted by the complainant.  It was prepared from a report made to the police by the complainant in July 2021.  In seeking to explain why he made this belated report to the police if it were true that he was misrepresented to by the appellant in April 2018 (which was a whole three years earlier) the complainant’s response was not only totally unsatisfactory but confirmed the defence of the appellant.  He said it was only in July 2021 that he realised that he might have been a victim of fraud perpetrated by the appellant as the vehicle had still not been delivered.  Having tried and failed to cause the appellant’s son to deliver the Foden tipper since 2018, the complainant, as a last throw of the dice, decided to cause the arrest of the father (the appellant) so as to induce the son to run around and refund the sum of US$22000.  The police, as was the court a quo, were made to deal with a civil case against the wrong party under the guise that it was dealing with a charge of fraud.  The court a quo did not see through that charade because it did not critique the evidence.  It was content to deal with the form of that which was placed before it rather than the substance.  A court of law ought not to be deceived by form, it must go to the substance.   See Kilburn v Kilburn’s Estate 1931 AD 501.

[15]	The story told by the prosecution in para(s) 7, 8 and 10 of the outline of the state case is this.  At the Marimba Shops interaction in 2018 the appellant, as part of the misrepresentation, gave the complainant a US$22000 quotation for a Foden Model 32 cubic metre truck inclusive of the import duty payable.  The appellant also gave the complainant a Nationwide Bank Sort Code 070438UK which he said was his son’s account number in the United Kingdom.  The US$22000 was to be deposited into this account.  After making the full payment the complainant showed the appellant proof thereof whereupon the appellant told the complainant that he would deliver the motor vehicle within three months.  This was not the story told by the complainant and his nephew at the trial.  It is true that the outline of the state case is not prepared by the complainant.  But it is prepared from the statement given by a complainant on lodging a police report.  What does this mean in casu?  It means that the complainant made a false report of fraud hence the variance between the charge sheet (on the dates) and the state outline on one hand and the purpoted evidence set out in the state outline and the evidence of the complainant on the other.  The effect of these variances was to destroy the case for the prosecution.  See A – G v Bennett 2011(1) ZLR 396(S) at 400C.  Paragraphs 7, 8 and 10 of the state outline did not exist in isolation.  They were part of an entirely fabricated state outline alleging that the appellant committed the offence of fraud by making the misrepresentation in the terms that we now know.  The trial was conducted on the basis of a false police report which gave birth to a false charge, a false outline of the state case and false evidence.  For completeness, we record that the complainant testified that it was Munyaradzi, not the appellant, who gave the former the account number into which the sum of US$22000 was to be deposited.  There also is no evidence on record that the appellant and the complainant entered into a verbal agreement sale of the motor vehicle in question.  There is no evidence that the appellant and complainant agreed on the purchase price, the date of delivery and the subject of such sale as claimed in the state outline.  We agree with Mr Mavuto that the court a quo was in error in finding, without evidence, that a verbal agreement of sale was entered into between the appellant and the complainant in 2018 at Marimba Shops.  It follows that the court a quo’s allied finding that the appellant made the misrepresentation to induce the complainant to enter into that agreement was erroneous.  It cannot stand.

[16]	At the end of the day, the only evidence which remains intact is that of the appellant.  His defence was simply that all that he did was to give the complainant Munyaradzi Chatukuta’s phone number to facilitate direct communication between those two.  That cannot amount to the crime of fraud.  The appellant could not be made a scapegoat for his son’s, or the companies’ failure to deliver the motor vehicle in terms of the contract.

ORDER

[17]	In the result,

IT IS ORDERED THAT:

The appeal is allowed.

The conviction is quashed and the sentence set aside.

The following is substituted:

“The accused is found Not Guilty and is Acquitted.”

Chikowero J:……………………

Zhou J:…………………………..I agree

Maposa and Ndomene Legal Practitioners, appellants legal practitioners

The National Prosecuting Authority, respondent’s legal practitioners