Anesu Trevor Muzira v The State

### Preamble
1
HH 191-21
B 594/21
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ANESU TREVOR MUZIRA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 30 March & 1 April 2021

Bail Application

A. Mugiya, for applicant

F. Kachidza, for respondent

MUSAKWA J: I dismissed the applicant’s application for bail pending review. A request was subsequently made for the reasons.

The applicant was convicted of fraud. He was sentenced to 16 months’ imprisonment of which 6 months were suspended for 5 years on condition of good behaviour. A further 6 months were suspended on condition of restituting the complainant in the sum of US$7 400 through the clerk of court. The remaining 4 months were suspended on condition of performing 140 hours of community service.

Sentence was passed in 2019. Not having paid restitution and a warrant of arrest having been issued, on 8 January 2021 the applicant appeared before the trial court and made representations that restitution had been paid into a trust account operated by the late legal practitioner, Mr Chakanyuka. He also contended that restitution should have been in local as opposed to foreign currency. It was ordered that restitution be paid in foreign currency, failing which the applicant is to serve the alternative term. This is the decision the applicant is seeking to be reviewed.

Submissions Made

Mr Mugiya submitted that the applicant has an unassailable case on review. This is because the issue has been settled by the Supreme Court in the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N. R. Barber (Pvt) Ltd and Another SC 3/20. The issue is whether the restitution order is affected by the Finance Act as well as the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) Regulations, Statutory Instrument 33 of 2019. As there is no dispute on the law, there is no incentive for the applicant to abscond.

Ms Kachidza submitted that the offence was committed prior to 22 February 2019. She posed the question whether the amount involved is a debt. She further submitted that in her view the amount is not a debt. This is because the applicant duped the complainant. The effect of the restitution order is to place the complainant in the position he was before the offence was committed.

Analysis

This application is doomed in two respects. When the Magistrates Court ordered the applicant to pay restitution it was exercising its sentencing discretion in terms of s 358 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. A court may pass sentence in a variety of ways provided in s 358 (2) and for purposes of the present matter ss 2(b) is relevant as it provides that:

“(2) When a person is convicted by any court of any offence other than an offence specified in the Eighth

Schedule, it may—

(a)…………………; or

(b) pass sentence, but order the operation of the whole or any part of the sentence to be suspended for a

period not exceeding five years on such conditions as the court may specify in the order; or

(c)…………………; or

(d)………………….

Then subsection (3) provides that:

“Conditions specified in terms of paragraph (a) or (b) of subsection (1) may relate to any one or more of

the following matters—

(a)……………..;

(b) compensation for damage or pecuniary loss caused by the offence:

Provided that no such condition shall require compensation to be paid in respect of damage or loss that

is the subject of an award of compensation in terms of Part XIX;

(c)……………;

(d)……………;

(e)……………;

(f)…………….;

(g)……………;

(h) …………....”

The order for restitution or compensation a court makes in terms of s 358 is not registrable as a civil judgment in terms of Part XIX of the Act. In ordering restitution, the trial court was not exercising its civil jurisdiction. It was not determining the contractual rights of the parties. It was simply acknowledging that the applicant defrauded the complainant in a specific amount. And as part of its sentencing discretion, it then suspended a portion of the sentence on condition of paying back the defrauded amount. Whilst the order of restitution benefits the complainant, its primary purpose is aimed at the accused in that it will result in him serving a lesser sentence in the event of making good the loss or prejudice caused.

See also S v Moyo and Anor 1996 (1) ZLR 5 (H) in which at p 8 CHATIKOBO J had this to say:

“In S v Majecha HH-16-84 (not reported), Squires J, dealing with suspensions of sentence based upon restitution in terms of s 358(2) of the Act said at p 3 of the cyclostyled judgment:

"Ordering an accused to make restitution to complainant is another way of repairing the financial or patrimonial loss caused to a victim which can be achieved without an application by the complainant for compensation under s 341(1) (now [s  362]). Such restitution can be achieved in appropriate circumstances - such as a desire or a capacity to do so on the part of the accused - by ordering part of the sentence to be suspended under the court's general powers to suspend all or portion of any sentence it imposes on suitable conditions. This power is given under s [358(2)(b)] and is on a different basis entirely from compensation awarded under s [362]. In the case of restitution the criminal sanction is being used to achieve performance of the condition, because it is part of the sentence which the court imposes. In this case the court does have a discretion, to order restitution in suitable circumstances; and the decision whether to resort to such a course or not is part of the wider question of imposing a suitable sentence."

On the other hand, when a court awards compensation under Part XIX it does not do so mero motu; there has to be an application made for it by the complainant or by the prosecutor on behalf of the complainant and in awarding such compensation the court does so sitting as a civil court, hearing a civil claim for damages and is required to apply the common law relating to liability for damages. See S v Mlilo & Ors 1978 RLR 411 (G).”

This effectively disposes of the matter.

It is also doubtful that the applicant can seek to overturn by way of review a decision of a court when it interpreted the law or gave its opinion of the law. An incorrect opinion of the law cannot be grossly unreasonable just because a party does not agree with it. For an opinion of the law to be challenged by way of review it must be shown that such a decision defies all logic and is completely wrong. Thus not every mistaken exercise of judgment is unreasonable, just as not every reasonable exercise of judgment is not right- Zambezi Proteins (Pvt) Ltd and Others v Minister of Environment and Tourism and Another 1996 (1) ZLR 378. See also Dombodzvuku and Another v Sithole NO and Another 2004 (2) ZLR 242 and Oskil Prperties v Chairman, Rent Control Board 1985 (2) SA 234. In such circumstances the application for review enjoys no prospects of success.

It was for these reasons that the application was dismissed.

Mugiya & Muvhami Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, first respondent’s legal practitioners