Pride Chada v The State

### Preamble
1
HMA 39-21
CA 118-19
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PRIDE CHADA

Versus

THE STATE

HIGH COURT OF ZIMBABWE

WAMAMBO J & ZISENGWE J

MASVINGO, 30 June 2021 & 2 September, 2021

Mr. F. Chirairo for the Appellant

Mr B.E Mathose for the Respondent

Criminal Appeal

ZISENGWE J:   	The appellant was convicted in the Magistrates Court sitting at Beitbridge of the offence of theft of trust property as defined in section 113 of the Criminal Law (Codification and Reform) Act, [ Chapter 9:23] ("the Criminal code"). The nub of the charge was that the appellant received the sum of eight thousand United States dollars (US $8 000) from the complainant for the sole purpose of purchasing a motor vehicle (described in the charge as a Mercedes Benz Atego 815 truck) (‘the motor vehicle”) from the United Kingdom on behalf of the complainant which sum of money he (i.e. appellant) unlawfully converted to his own use.

The appellant while admitting having received the said sum of money from the complainant for the stated purpose and having failed to either procure the motor vehicle or refund complainant of his money, nonetheless vehemently denied the charge. His defence throughout the ensuing trial was that he was an unfortunate victim of circumstances in that he was deceived by the UK based supplier into remitting the money in question to him but never received the motor vehicle.

It was his version that having surrendered the US$ 8 000 to the supplier’s agent in Harare at the supplier’s behest, he soon received confirmation of its receipt via email. He further indicated that he was informed by the supplier that this payment however left an outstanding balance of US $1 000. He stated that he was assured that the motor vehicle would nonetheless be shipped to the Namibian coastal city of Walvis Bay for collection subject to the payment of the said balance there. He further proceeded to indicate that he was made to believe by the supplier that the preparation of all documentation relating to the transhipment of the motor vehicle (notably the bill of lading) was underway and that he should anticipate the motor vehicle’s arrival in the not too distant future.

However, according to him, from then on, he was sent from pillar to post as the supplier never came through with his undertaking to deliver the motor vehicle. Ultimately, according to him, his attempts to trace the seller via engagements with the British embassy in Harare and the local police proved futile and the complainant having lost patience, reported him to the police leading to his arrest.

He therefore denied having converted any of the complainant’s money to his own personal use or having harboured any intention of doing so.

At the conclusion of the trial in which the complainant and the appellant were the sole witnesses for the prosecution and the defence respectively, the court a quo convicted the appellant before sentencing him to 24 months’ imprisonment, 12 of which were suspended on condition of “good behaviour’ and the other 12 months being suspended on condition of restitution.

Disgruntled by the conviction, the appellant appealed to this court. He itemised seven separate grounds of appeal whose net effect was however that the evidence presented before the court a quo was such as not to discount the possibility of him having been swindled by the UK based seller. The grounds of appeal were stated as follows:

“The grounds of Appeal

The conviction and subsequent sentence imposed by the Learned Magistrate is not only a miscarriage of justice but induces a sense of shock in the exercise of her discretion.

The Learned Magistrate erred by failing to distinguish between a criminal and civil dispute.

The Learned Magistrate erred by not taking heed of the Appellant’s defence that the money in question was conveyed to the intended destination through Bluestyles Agent who is based in Harare and being the agent of the supplier of the vehicle in question and the state did not lead evidence to the contrary.

The Learned Magistrate erred by not taking heed of the Appellant’s defence that he was conned by the supplier Tawanda Chibanda and reported him to the police, which matter is still under investigation at Braeside Police Station.

The Learned Magistrate erred by ignoring the fact that no evidence in the record has pointed our that the appellant converted the money into his own use neither did he convey it to any other destination outside the agreement.

The Learned Magistrate erred by relying on the evidence of a single witness and uncollaborated (sic) witness who in his capacity was not in a position to rebut the appellant’s defence which in this case would have been done by the investigating officer.

The Learned Magistrate erred by ignoring the appellant’s intention which is clearly not criminal.

The Learned Magistrate further erred by convicting the appellant on the basis of affidavits tendered by the state which have been authored by the appellant. The contents of the affidavits are common cause. The appellant does not dispute receiving the US$8000 from the complainant but the alleged conversion of the said money.

Prayer

Wherefore the appellant prays that the appeal against both conviction and sentence succeeds and that the conviction and sentence imposed by the learned Magistrate on the 22nd of November 2019 be and is hereby set aside.”

Although the grounds of appeal are somewhat inelegantly framed, upon close inspection one realises that the appeal attacks the decision of the court a quo on two broad premises, namely:

That the court a quo erred in failing to appreciate that the dispute between the appellant and complainant was purely civil in nature as the former did not act with any criminal intent (grounds 1 and 6 above).

That the court a quo erred in rejecting the appellant’s version that he did not convert the money in question to his own use but was swindled of the same by the UK based supplier, one Tawanda Chibanda (grounds 2,3,4,5 and 7).

The evidence

From the evidence led as a whole, the following facts leading to the arrest of the appellant are common cause. Both complainant and appellant are based in the border town of Beitbridge. The appellant runs an import and export business and earns a living as an agent assisting his clients to import motor vehicles into the country.

More pertinently it is not in dispute that on the 20th of June 2018 appellant received the sum of US$8000 from the complainant for the sole purpose of the former procuring the motor vehicle from the United Kingdom on behalf of the latter. It is further common cause that it was agreed as between them that the motor vehicle was to be delivered by the 31st of July 2018. Equally undisputed is the fact that the appellant failed to deliver the motor vehicle within the agreed time frame and that on several occasions the appellant was confronted by the complainant over his failure to so deliver. On two of those occasions, the appellant, by way of affidavit, acknowledged his indebtedness to the complainant wherein he made an undertaking to either perform on the contract or to refund the complainant the amount in question. It is also common cause that prior to that, the appellant had provided complainant with a handwritten receipt dated 21 June 2018 for the sum of US$8 000 purportedly issued by a company called Blue-styles UK cars.

Where the parties part ways, however, is the conclusion to be drawn from the appellant’s failure to perform his contractual obligation to procure and deliver the motor vehicle or alternatively to refund the purchase price. The complainant in his evidence expressed firm conviction that the appellant converted the money to his own use. In this regard he referred to separate pieces of evidence which in his view lend support to that conclusion. Firstly, he indicated that contrary to appellant’s assertions in court that he surrendered the money to the supposed seller’s agent in Harare, he (i.e. appellant) had in fact informed him that he was to deposit the money in a bank in Harare casting the truthfulness of having handed the money to an agent in serious doubt. Secondly, he pointed out that the appellant kept giving him assurances that the motor vehicle would be delivered but ultimately failed to make good on that promise.

Perhaps most significantly, he testified that at no point did the appellant ever inform him that he had actually been swindled of the money in question or that he had reported such fraud to the police. He expressed surprise at such revelations, coming as they did, according to him, only during the trial. He denied that the appellant had ever furnished him with any documentation (other than the handwritten receipt referred to hereinbefore) concerning the procurement and intended shipment of the motor vehicle by the supplier. He therefore completely distanced himself from the log book and shipping note on which the appellant sought to rely.

The appellant on the other hand denied any wrongdoing and indicated that he did all he could to procure the motor vehicle from the United Kingdom. Although he did not say so in as many words, the import of his defence was that he fell prey to an unscrupulous supplier based in the United Kingdom by the name of Tawanda Chibanda. In his evidence in chief he produced two additional documents supposedly confirmatory of his dealings with the said Tawanda Chibanda. The first was a document dated 13 June 2018 marked "Remittance advice for invoice No. 4046”. This document purports to give payment details in respect of a Barclays Bank Account with the following breakdown in pound sterling:

Subtotal 					£4 300.00

VAT 0%					£       0.00

Shipping 					£2 450.00

Total 						£6 750.00

Paid 						£6 750.00

Balance 					£       0.00

The second document appears to be an invoice generated by Blue-styles UK cars. It bears the invoice number 4046 and was also generated on the 13th of June 2018. It gives the details of the type of motor vehicles procured, (a Mercedes Benz Atego 818, curtain side rigid, manual transmission, Diesel fuel 174 Bhp), the consignee thereby billed (Mutsago Confidence Tendai  Pride Chada @gmail.com) 156 Wellington  Road, Beitbridge, Zimbabwe), the physical address to which the motor vehicle was to be shipped (156 Wellington  Road, Beitbridge , Zimbabwe) and the identity, physical address and email address of consignor (Tawanda @bluestyles.co.uk, 22 Manse farm Mewa, Cudworth, Barnsley, South Yorkshire 572 8 WR, England).

The appellant was taken to task during cross-examination over the glaring discrepancy between the date appearing ex facie those two documents (13 June 2018) vis-à-vis the date on which he received the US$8 000 from complainant and surrendered the same to the supposed agent (20 June 2018 and 21 June 2018 respectively).

It was on the basis of this discrepancy, among others, that the court a quo rejected appellant’s version as being false and convicted him. The court also relied on the affidavits deposed to by the appellant wherein he promised to do either of two things; to deliver the motor vehicle or refund its purchase price neither of which he ultimately managed to do.

Although in his notice of appeal the appellant listed seven separate grounds of appeal as earlier stated, in the heads of argument filed in support of the appeal reliance was placed on one single ground. The following was stated in this regard:

"These submissions will only rely on the ground of appeal against conviction namely ground 4:

"The learned Magistrate erred by ignoring the fact that no evidence in the record has pointed out (sic) that the appellant converted the namely into his own use neither did he convey it to any other destination outside the agreement."

In this regard it was submitted on behalf of the appellant that the evidence fell short of the requisite threshold required to sustain a conviction, namely of establishing beyond all reasonable doubt that appellant had indeed stolen the money as contemplated in section 113 (2) (a) to (d) of the Criminal Code. The argument being that the conviction was vitiated by want of proof of the requisite mens rea. The appellant therefore implored this court to overturn the conviction.

The initial reaction by the state to the appeal (as expressed in its written heads of argument) was to accede to the same. Relying on the cases of State v Ganda HH 224-15 and State v Kashamba HH 36-17, the state expressed reservations over the propriety of the conviction, particularly on the sufficiency of the evidence of the conversion of the trust money.

However, pursuant to engagement by the court during oral submissions in court, counsel for the State exhibited ambivalence over his initial position. Likewise, counsel for the appellant lamented the appellant’s failure to produce crucial documentation to buttress his defence which documentation, in the ordinary course of events, he would have been expected produce. Be that as it may, the two main issues raised in the appeal will be addressed seriatim.

Whether or not the dispute is exclusively civil in nature.

Regarding this particular question, there was convergence as between counsel that seldom would a dispute of this nature be characterised as being exclusively civil, as not infrequently, it would have a criminal dimension to it. More importantly, however, a distinction is drawn between a debtor-creditor relationship on the one hand, a breach of whose terms usually results in a purely civil dispute and one of trust on the other. The basic difference is that theft is not committed by a debtor spending the money received from a lender, while theft is committed by a trustee spending trust money. The term trust property is defined in section 112 of the Criminal code in the following terms:

‘“trust property” means property held, whether under a deed of trust or by agreement or under any enactment, on terms requiring the holder to do any or all of the following-

hold the property on behalf of another person or account for it to another person; or

hand the property over to a specific person; or

deal with the property in a particular way;

but does not include property received on terms expressly or impliedly stipulating that-

the recipient is entitled to use the property as his or her own; and

there would only be a debtor and creditor relationship between the parties.”

By way of illustration, in S v Vambe 1986 (1) ZLR 168 (S) the accused was given money by his customers as pre-payments for goods he had undertaken to obtain for them. He successfully appealed to the Supreme Court against his conviction on a charge of theft by conversion. The appellate court found that he was not guilty of theft by conversion as the relationship between him and his customers was that of debtor and creditor and that the customers simply had a civil claim against him. DUMBUTSHENA CJ in drawing the distinction between a debtor creditor relationship on the one hand and one of trust on the other, observed, as follows:

“If a person receives money for buying goods for someone and does not buy them but converts the money to his own use he does not necessarily commit theft. See S v Matlare 1965 (3) SA 326 (CPD) at 327G; R v Gebhard 1947 (2) SA 1210 where the headnote reads:

"A person does not commit the crime of theft if he obtains money from another as the purchase price of goods which he undertakes to deliver to that other and neither delivers the goods nor returns the money paid but converts it to his own use.” (emphasis mine)

However, the court pointed out, orbiter, at page172 as follows:

“Similarly, if the State can prove that the money was "trust money" i.e. money given to an agent with instructions to devote it to a specific purpose, then the use of that money for some other purpose without the retention of an equivalent liquid fund may well constitute theft. See Hunt op cit at 639 and the cases there cited at note 355.

In the present case the relationship between the appellant and complainant was clearly not one of a debtor and creditor, it squarely fell within the ambit of trust as per the definition in (c) above. At the risk of repetition, the appellant was required to deal with the money in question in a specific way, namely to purchase a motor vehicle on behalf of the complainant. The situation would have been different had the appellant purchased the motor vehicle from the appellant and the latter had failed to deliver the same.

Whether the State managed to establish the intent to steal

The fact that the relationship between the complainant and appellant was one of trust as envisaged in Section 112 of the Criminal code is not the end of the matter as the state was still required to show the element of appropriation by the appellant of the money in question in the sense of converting it to his own use to the prejudice of the complainant.

Section 113(2) of the criminal code under which the appellant was charged and convicted reads as follows,

113.	 Theft

…………….

Subject to subsection (3), a person shall also be guilty of theft if he or she holds trust property and, in breach of the term under which it is so held, he or she intentionally-

omits to account or accounts incorrectly for the property; or

hands the property or part of it for purpose other than the purpose for which he or she is obliged to use it; or

uses the property or part of it for a purpose other than the purpose for which he or she is obliged to use it; or

converts the property or part of it to his or her own use”

It being common cause that the appellant failed to either procure the said motor vehicle refund the said sum, the question that confronted the court a quo was whether the state had managed to prove that the appellant had with the requisite criminal intent converted that amount to his own use.

Viewed from a different angle, the question before the court a quo was simply whether or not the appellant’s version that he remitted the purchase price to the UK as per his mandate but was unfortunately swindled of the same by the supposed supplier could be regarded as being reasonably possibly true. This is the same question upon which this court is called to ponder.

This question is, of course, is to be answered against the backdrop of the standard and onus of proof in a criminal trial. It is trite law that the prosecution bears the burden to prove its case against the accused beyond reasonable doubt. Formulations abound on the meaning and import of this legal precept. A few examples will suffice. In R v Difford 1937 SA 370 at 373 the following was said:

"it is equally clear that no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is untitled to his acquittal.... "

Equally apposite are the often-cited remarks of Van der SPUY AJ in S v Munyai 1986 (4) SA 712 (V) at 714 l-715 A and 715 F-G to the following effect:

"although the accused’s version of events is improbable and contradictory, especially when he questioned the witness about the alleged robbery, I am nevertheless of the opinion that the version of the accused could reasonably possibly be true. Even if the state case stood as a completely acceptable and unshaken edifice, a court must investigate the defence case with a view to discerning whether it is demonstrably false or inherently improbable as to be rejected as false. There is no room for balancing the two versions i.e. the state as against the accused and to act on preponderances."

In this present matter, however, there appears to be a misapprehension that in the absence of positive proof of how the appellant converted the money in question, then a conviction cannot ensue. It would be absurd, as I see it, to insist on proof of the manner the Appellant supposedly spent, distributed or otherwise disposed of the money in order to support a conviction. His failure to satisfactorily account for the money entrusted to him in my view suffices. This explains why in s113 (1) (a) a failure to account or an incorrect accounting of the property so entrusted to the accused is sufficient to found a conviction. As with virtually all criminal charges, inferences may be drawn from the circumstantial evidence leading to a conclusion of such conversion or failure to account.

In S v Mphatswanyane 1980 (4) SA 253 (B) the following was said at 254 H:

“On count one the court must determine whether or not fraudulosa contrectatio has been proved. The question whether or not theft has been committed arises frequently in cases where money, received by agents under mandate to devote to a particular purpose, has been utilised in some manner for the benefit of the agent. This question must be decided upon the circumstances of each case, because in each case the court must determine whether the utilization has amounted to a fraudulosa contrectatio.”

The case of State v Ganda HH 224-15 on which the state sought to rely can easily be distinguished from the present one. In that matter, which was a criminal review case, the accused who had pleaded guilty to the theft by conversion of a “push cart” had in the course of his questioning by the court in terms of section 271 (2) (b) of the Criminal Procedure and Evidence Act, Chapter 9:07 indicated that the cart had in fact been stolen when he had left it outside overnight. I respectfully agree with the court’s observations in that case that the correct course of action in those circumstances would have been to alter the plea to one of “Not guilty’ given that accused’s plea of guilty did not amount to an unequivocal admission of him having stolen the cart. The truthfulness of his explanation that he had not unlawfully converted the cart to his own use could only have been tested in a full contested trial.

The case of State v Kambasha & Another HH 36-17 is equally distinguishable in that it related to a debtor-creditor relationship which was clearly not the case in casu, as explained earlier in this judgment.

In my view, where, as here, a person admits having received trust money intended for a specific purpose such as the procurement of an item on behalf of the person so tendering the money, but fails to deliver as so mandated claiming to have been defrauded of that money by a third party, the enquiry shifts to the bona fides of that explanation. The result of that enquiry is dependent on inferences to be drawn from all the surrounding facts. The surrounding facts may very well be such as to rebut such a version leading to an inference of him having unlawfully converted the money to his own use.

The Court a quo in my opinion cannot be faulted for finding, upon its inspection of the appellant’s defence that it was riddled with such glaring inconsistencies and improbabilities justifying the inference that same was patently false and hence rejected it. The obvious starting point was appellant’s attempt to rely on documentation which was at odds with him having remitted funds connected with the transaction in question.

The two documents on which he purported to rely ante-dated the date on which he actually received the money from the complainant. Those documents therefore could not conceivably have been related to the transaction that forms the subject matter of the present charges. The discrepancy in the dates was not something that appellant would have failed to observe and seek rectification thereof should he have indeed received those documents from the supplier.

This, in my view lent credence to the complainant’s position that he never received such documents from the appellant. In turn this begs the question why appellant would withhold such documents from the complainant, particularly in view of the fact that complainant constantly pestered him over the fate of the motor vehicle. I see no reason why the complainant would acknowledge having been shown the handwritten receipt alluded to above but would deny having been shown the supposed bill of lading and invoice. The inescapable conclusion, therefore, is that those documents are either completely unrelated to the complainant’s transaction with the appellant or were “cooked up” by the latter to mislead the court.

Further, in his defence the appellant appeared to suggest that the payment of the $8000 left a balance of $1000 yet the very documents which he purported to rely on disclosed no such balance. Related to this, I equally find it highly improbable that a transaction of this nature involving international trade and transhipment of vehicles would have outstanding balances being made payable at the point of collection as the appellant sought to suggest.

The appellant further sought to convince the court a quo that he received a log book similar to a registration book from the supplier which he proceeded to give the complainant. Not only do I find it absurd to suggest that the supplier based abroad and in the context of this transaction would furnish the purchaser with a log book before the purchase price was paid in full, but I also cannot fathom any reason why the complainant would distance himself from that log book should the same have been furnished to him as suggested by the appellant. Sight must not be lost of the fact that this was supposedly the same log book which the appellant would, in the ordinary course of events, have needed to clear the motor vehicle at the port of collection and to transport the same across frontiers. Handing it to complainant would have been illogical as it would have had the effect of defeating those two purposes namely to clear and collect the vehicle at the receiving port and to transport it across borders. I state this on the assumption that the supposed log book was a physical copy, (the form which Registration books usually take). However, if one were to assume that it was in electronic form, one would then have expected appellant to print a copy and avail the same during the trial, which he did not.

The appellant further referred to shipping notes which he supposedly received from the supplier showing the dates on which the motor vehicle was to be shipped. Those documents as with the Registration/log book, emails or other forms of communication between the appellant and the alleged supplier were conspicuous by their absence during the trial. One would have expected to find a complete “paper trail” detailing the inception of the transaction, the progress made and the follow-ups and other enquiries made pursuant to the same.

Moving on, the complainant testified that appellant informed him that he had deposited the purchase price with a bank in Harare, only for appellant to surface with a handwritten receipt from an alleged agent in Harare. If he had surrendered the money to the seller’s agent as he sought the court to believe why would he proceed to mislead the complainant that he had in fact deposited the money in a bank? All this undoubtedly demonstrates that this was an intricate web of lies by the appellant designed to deceive the appellant to camouflage the real fate that had befallen the money.

Further, surely if appellant had indeed been swindled by the UK supplier as he wants everyone to believe and had not only reported the matter at the Braeside police station in Harare but had also made enquires with the British Embassy, I find it incongruous and utterly inconceivable that he would fail to disclose, as he did, these drastic and very important developments to the complainant. As if that was not bad enough, he also failed to produce any relevant documentation to confirm such engagements with the British Embassy and the supposed report to the police. His failure to do either of these in the context of this case virtually destroyed the credibility of this version of events.

In my view all these inconsistencies irredeemably dented the appellant’s version. These observations do not in the least suggest placing any onus on the appellant to prove the truthfulness of his assertions, (which onus firmly remained with the State) they merely constitute an objective assessment of the bona fides of appellant’s denial of having converted the money to his own use.

The tenor of the Appellant’s argument in this appeal appears to be (although he did not say so in as many words) that the court a quo ought to have accepted his version (or have given it the benefit of the doubt) upon his mere ipse dixit, no matter how inconsistent, improbable or at variance with the rest of the evidence it was. I find such a proposition untenable. It is trite law that although an accused bears no onus to prove the truthfulness of his version, he is required to present a version which is reasonably possibly true.

Ultimately, I hold the view that the court a quo was correct in rejecting, from the available evidence, the appellant’s version that he remitted the complainant’s money to the United Kingdom for its intended purpose. The court a quo cannot also, in my view, be faulted for concluding as it did (although it did not say so in terms) that the only plausible inference was that the appellant had converted the money in question to his own use and thereafter sought to send the complainant and thereafter it (i.e. the court) on a wild goose chase on the fate that had befallen it. The appellant’s version cannot be both patently false and reasonably possibly true, from the evidence it was clearly the former.

To conclude, therefore I find myself constrained to refer to the instructive words of LORD DENNING in Miller v Minister of pensions [1947] all ER 372 at 373 on the standard of proof required in a criminal trial, where he said the following on the meaning of “proof beyond reasonable doubt”:

"….it need not reach certainty, but must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful probabilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it’s possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice"

In the present matter for the reasons outlined above, I find that the state was able to prove its case against the appellant beyond reasonable doubt.  The appeal is therefore without merit and must be dismissed.

Order

The appeal against conviction he and is hereby dismissed.

ZISENGWE J.

WAMAMBO J. Agrees………………………………….

Chauke & Associates; Appellants’ Legal Practitioners

National Prosecuting Authority; Respondents Legal Practitioners