Cleopas Vengayi Nyangoni v The State

### Preamble
1
HH 448-12
CA 674/11
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CLEOPAS VENGAYI NYANGONI

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 28 November 2012

Before:	HUNGWE J, IN CHAMBERS IN TERMS OF SECTION 35 OF THE HIGH COURT ACT [CAP 7:06]

In this case the appellant was convicted of theft of Trust Property as defined in

s 113(2)(d) of the Criminal Law (Codification and Reform) Act, [Cap 9:23], on 23 August 2011.

On the same day he was sentenced to 7 months imprisonment which was wholly

suspended on condition of restitution of the sum of US$3000 before a given date.

Dissatisfied with both his conviction and sentence, he noted an appeal against both

conviction and sentence. The appellant was a self-actor both at his trial and on appeal.

The first issue for determination was whether the money paid over by the complainant

to the appellant for the purpose of purchasing a motor vehicle from Japan constitutes trust property in terms of the Criminal Law (Codification and Reform) Act, [Cap 9:23].

In determining this issue the court a quo held that because the appellant admitted

investing the complainant’s money in the absence of authorisation to so invest therefore he was guilty of theft of trust money.

This reasoning is patently flawed.

The fact that the appellant had signed an acknowledgement of debt demonstrates the

true relationship between the parties, one of debtor and creditor as set out in s 112 of the Criminal Code.

The facts of the matter show that the complainant paid over money to the appellant

who promised to import a motor vehicle from Japan using the money paid as a deposit. There is dispute as to whether the deposit was paid over for the purpose but the appellant contended that he had imported a motor vehicle. The motor vehicle could not be brought into Zimbabwe as complainant failed to top-up his deposit as ZIMRA had required higher duty than anticipated. He had therefore sold that car.

In the event he had agreed with the complainant to reimburse the money paid

by complainant. An acknowledgment of debt was executed to take the place of the initial Agreement of Sale executed by the parties. These facts show that their original agreement had failed.

It need not be pointed out that in an agreement of sale, once the money is paid over to

the seller, it becomes the seller’s money. The seller can appropriate that money for his business as long as he delivers on the agreement of sale.

In order for such money to qualify as trust property there would be required to be

proved some evidence that show that this was a unique transaction going beyond the usual buyer seller relationship which required the seller to specifically account for those notes he accepted as tender for the purchase price to facilitate a particular transaction only.

In the premises there was no evidence led to prove that the payment made in terms of

the agreement of sale accumulated to trust property as defined in the Criminal Law Code.

The respondent filed a concession in terms of s 35 of the High Court Act [Cap 7:06].

conceding that there was no proof of all the elements constituting the offence charged.

That concession in my view was well made.

The appeal against both conviction and sentence by the appellant is allowed.

I therefore make the following order:-

The verdict of the court a quo is set aside and the sentence is quashed. In its place the

following is substituted.

“The accused is found not guilty and is acquitted”.

MAVANGIRA J agrees with this judgment