Douglas Tapfuma v The State

### Preamble
1
HH 254-21
HACC (A) 11/20
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DOUGLAS TAPFUMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHIKOWERO AND KWENDA JJ

HARARE, 30 March 2021 and 20 May 2021

Criminal appeal

T. Zhuwarara, for the appellants

T. Mapfuwa, for the respondent

CHIKOWERO J: This is an appeal against both conviction and sentence pursuant to the Magistrates Court convicting the appellant of 3 counts of criminal abuse of duty as a public officer as defined in s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”). He was sentenced to 2 years imprisonment on each count. Of the total 6 years imprisonment 2 years imprisonment was suspended for 5 years on the usual conditions of good behaviour. The eight motor vehicles which are the subject of the offence were fortified to the State.

The allegations against the appellant were that in April, June and August 2018 and at the Department of State  Residences, Harare, the appellant being a public officer by virtue of his employment as the Principal Director in that department in the exercise of his functions unlawfully and intentionally did that which was contrary to or inconsistent with his duties as a public officer by importing eight personal vehicles purporting that the same belonged to the Department of State Residences hence exempted from paying duty. Having evaded the payment of duty, the appellant’s conduct resulted in the Zimbabwe Revenue Authority (ZIMRA) suffering an actual prejudice in the sum of US$11 996. This was the total duty which appellant was required by the law to pay to ZIMRA on importing the personal vehicles.

The appellant was also charged with 3 alternative counts of fraud as defined in s 136 of the Code. The allegations were that he unlawfully misrepresented to the Deputy Chief Secretary for Administration and Finance in the Office of the President and Cabinet that the eight motor vehicles were the property of the Department of State Residences hence requiring the issuance of import duty free certificates and by means of this misrepresentation deceived the Deputy Chief Secretary leading to the appellant obtaining duty free certificates for his personal vehicles, thus prejudicing the Department of State Residencies.

The appellant’s defence was essentially that he imported his eight personal motor vehicles duty free in line with an unwritten policy which existed in the State Residences Department. He did not misrepresent to the Deputy Chief Secretary that the vehicles belonged to the department. He made it manifest that the vehicles were personal vehicles. ZIMRA was not prejudiced as duty would be paid at the time of registration of the vehicles.

The Magistrates Court found that the following facts were common cause. First, that the appellant was a public officer by virtue of his post as the Principal Director in the Department of State Residencies. He was a sub-accounting officer with the accounting officer being his immediate superior, the Deputy Chief Secretary Dr Ray Clinton Ndhlukula (Ndhlukula). Second, that the appellant imported the eight motor vehicles. Third, that all the eight were his personal vehicles. Fourth, when he prepared documentation for the provisional clearance of these vehicles, he did so while exercising his functions as a public officer. Fifth, as Principal Director of the Department of State Residencies, the appellant then wrote under cover of the Department’s stationary and letterhead to Ndhlukula requesting for the issuance of import duty free certificates so that the vehicles might be finally cleared. The certificates were issued. Fifth, that two out of the eight vehicles were recovered from Kwekwe General Hospital where they had been donated by him and were being used as ambulances, five were recovered from appellant’s farm while the eighth was not recovered by dint of it having been involved in an accident and damaged beyond repair. All the eight vehicles were not registered in the appellant’s name. Seven were registered in the name of the President’s Department with the eighth registered as belonging to the Office of the President and Cabinet. The appellant did not pay import duty, in the sum ofUS$11 996, to ZIMRA. The findings of fact were common cause at the hearing of the appeal.

Four grounds of appeal were raised against the convictions. These are:

“1. The court a quo erred and misdirected itself in finding that the policy of importing motor vehicles through the principals did not exist without evidence to the contrary from the principals.

The court a quo erred in finding that appellant misrepresented to Ray Clinton Ndhlukula when the import documents clearly indicated appellant was the importer.

The court a quo erred in accepting the evidence of Egepha Victoria Jokomo when it was hearsay evidence.

The court a quo erred and misdirected itself in finding that the evidence of the drivers corroborated the state case when in fact it supported the appellant’s defence.”

As against sentence the appellant also relied on four grounds of appeal. They are:

“1. The sentence imposed by the learned Magistrate was excessive and induces a sense of shock in the circumstances, by not first considering a fine as opposed to a term of imprisonment per section 174 (1)(a) of the Code.

The court a quo erred and misdirected itself by ordering forfeiture of the 8 motor vehicles when they were not proceeds of a crime, but bought using own funds.

The court a quo erred by failing to consider community service for the moral blameworthy of the appellant was very low in that he did not hide the transactions, since the documents showed that he purchased the motor vehicles in his own personal capacity.

The court a quo erred and misdirected itself by finding correctly that the appellant had spent a long time in custody pending trial but did not account for it in the final sentence.”

The appellant did not, in his heads of argument, motivate any of the grounds of appeal against the conviction. Rather, the conviction was attacked on two grounds of law. First, that on the facts as found by the court below, the appellant did not commit the crime of criminal abuse of duty as a public officer. Second, that the mens rea element of the offence of criminal abuse of duty as public officer was not proven. Mr Zhuwarara, who composed the appellants heads of arguments, put it thus at para 9:

“The court a quo fell into error because it asked the wrong question (s). The issue is not whether 	the accused could prove the existence of the policy as he alleged but whether he genuinely acted 	thinking that his conduct was allowable. In casu no finding is made that the appellant’s 	explanation was improbable. The court a quo was enjoined at law to interrogate whether there 	was any reasonable possibility of the appellant’s explanation being true. No such enquiry is 	ever made.”

In respect of the first point of law, Mr Zhuwarara submitted that the trial court did not determine whether appellant imported the eight personal vehicles without paying duty for the purpose of showing favour or disfavour to some other person. Counsel referred us, among others, to the case of the State v Taranhike  & Ors 2018 (1) ZLR 399 (H) for an exposition of the elements of this offence, with particular reference to the elements of favour or disfavour. I observe that one of the critical findings of fact in Taranhike supra was that there was no evidence that the accused persons in that matter had deliberately acted to show favour or disfavour to any person.

Section 174 (1)(a) and (2) of the Code reads as follows:

“(1)	If a public officer in the exercise of his or her functions as such, intentionally-

(a)	does anything that is contrary to or inconsistent with his or her duty as a public officer 		or

(b)	………..

for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal 	abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment 	for a period not exceeding fifteen years or both.

(2)	If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice favour of any person, it shall be presumed, unless the contrary is proved that he or she 	did or omitted to do the thing for the purpose of showing favour or disfavor, as the case may be, to that person.” (underlining is mine for emphasis)

The point was made in Mutoti v State HH 244/20 and repeated in Undenge v State HH 368/20 that s 174 of the code is a re-enactment of the now repealed s 4 (a) of the prevention of Corruption Act [Chapter 9:16]. All that the prosecution needs to do under s 171 (1)(a) or (b) is to prove the actus reus of the offence whereupon a presumption arises in favour of the state that the public officer did or omitted to do the thing for the purpose of showing favour or disfavour to someone else. This presumption is commonly referred to as a reverse onus. The pubic officer charged under s 174 (1)(a) or (b) has a burden of discharging it on a balance of probabilities failing which a conviction may ensue. In S v Chogugudza 1996 (1) ZLR 28 (S) the appellant had been convicted under s 4(1)(a) of the Prevention of Corruption Act [Chapter 9:10]. In setting out the task of the prosecution and the onus on the appellant, GUBBAY CJ said in Chogugudza supra at 35C-F:

“It is apparent, then, that before the State can rely on the presumptive proof of s 15(2)(e) of the Act, it must prove beyond a reasonable doubt the following factual premises:

that in the course of his employment and in breach of his duty

he did something which, objectively considered, showed favour or disfavour to another.

This leaves proof of the purpose of showing favour or disfavour to the accused to discharge. It is an element that may be described as-

a particular fact (state of mind)

a matter which he should know and can easily prove

a matter difficult for the state to prove.

The presumption does not have the effect of requiring the accused unfairly to discharge a major ingredient of the offence for no reason at all. A strong suspicion will have been created on the facts proved by the state from which a permissible inference could be drawn that the purpose was to show favour or disfavour. The accused is simply called upon to reveal something peculiarly within his knowledge- why he acted as he did. This seems to me essentially an exercise in common sense.”

See also Murisi v State SC 29/19.

The Legislature in s 174 uses the words “disfavour” and “prejudice” interchangeably. [Chapter 1X] of the Code, which deals with Bribery and Corruption, defines neither disfavour nor prejudice. But the fact that s 174(1) and (2) employ the words “favour or disfavour” interchangeably with “favour or prejudice” must mean that, for the purpose of the offence of criminal abuse of duty as a public officer, disfavour means the same thing as prejudice.

It is true that the evidence on record is clear that appellant benefitted from importing the eight personal vehicles because he did not pay import duty. The extent of that financial benefit is US$11.996.

Did the magistrates court not consider whether appellant showed disfavour to any person? I agree with Mr Mapfuwa that the trial court dealt with this issue, and found it proven beyond reasonable doubt. In this regard, the magistrate said at p 11 of the judgment:

“The vehicles were then cleared using the President’s code 446 and 403 thereby evading the payment of duty.”

Further down the same page the court a quo said:

“As a witness, I would say absolutely nothing really turned on accused person’s defence. His evidence was widely riddled with braggings and riddled with irrelevant issues pertaining to his operations at the President’s office. In my view, the operations have no bearing on the charges that he is facing, hence the reason why defence counsel had to constantly remind him to focus on the issues before the court and not politics. It has no bearing on the charges he is facing, that he imported 8 personal vehicles which were provisionally cleared using State resources. Thereafter, he applied for duty free certificates and then applied for duty exemption which was granted thereby prejudicing ZIMRA of duty payment.” (underlined for emphasis)

It was proven that ZIMRA was prejudiced of duty in the sum ofUS$11 996. The importation and registration of eight vehicles disguised as cars belonging to the Department of State Residencies prejudiced ZIMRA of that much revenue. The appellant’s act was done for the purpose of showing disfavour, prejudice, harm, financial loss (all meaning the same thing in the circumstances) to ZIMRA. Taranhike is thus distinguishable on the facts.

I consider that S v Moyo 2003 (1) ZLR 309 (H) is also distinguishable on the facts. Moyo succeeded in overturning the conviction of fraud on appeal because she had not misrepresented to the vetting officers that she was a war veteran. The appellate court took the view that she should have been charged under the War Veterans Act [Chapter 11:15] for receiving assistance meant for war veterans when she was not a war veteran. I do not agree with Mr Zhuwarara that the trial court did not deal with the question of appellant’s mens rea. The paper trail admits of no other interpretation but that the appellant devised an elaborate scheme, taking advantage of the trust and powers reposing in his office, to evade paying duty to ZIMRA for the importation of his eight personal vehicles. There would have been no need to register, at the Central Vehicle Registry, the seven vehicles under the President’s Department and the eighth under the Office of the President and Cabinet if he genuinely believed that there was an unwritten policy permitting him to import personal vehicles duty free. He would simply have registered the vehicles in his name. After all, all these vehicles belonged to him. The magistrate may not have said, in so many words, that the appellant failed to rebut the presumption in s 174(2) of the Code. But that does not change anything. Her rejection of the appellant’s defence effectively means that the court a quo found that the appellant had failed to discharge the reverse onus on a balance of probabilities.

But I must say this. On appeal the appellant, through counsel, was no longer attacking the magistrate’s finding that the policy of importing personal vehicles without paying duty did not exist. I have already noted that ground of appeal number 1 was not pursued in both the heads of argument and oral submissions made before us. Instead, Mr Zhuwarara submitted (which seems to me to be pleading a different defence for the first time on appeal) that appellant genuinely believed that there existed an unwritten departmental policy allowing him to import personal vehicles duty free.

All the same, a reading of the judgment a quo discloses that the trial court was satisfied that the appellant did not even genuinely believe that such an unwritten policy existed. Instead, he knew that no such policy existed. In this regard, the magistrate said at p 9 of her judgment:

“When he was asked by the prosecutor how the motor vehicles were then registered using the President and Government Code that is 446 and 403, he professed ignorance and did not want to comment. My view is he was in control and knew exactly what was going on”.

It will be recalled that five of these vehicles were recovered from his possession, two from Kwekwe General Hospital where he had donated them while the eighth was written off because it had been accident damaged.

As regards sentence, the appellant abandoned the 2nd and 4th grounds of appeal. This means that I must consider whether the sentence is excessive and induces a sense of shock. The appellant is of the view that the trial court misdirected itself in not considering imposition of either a fine or community service.

In S v Ramushu and Others S 25/93 GUBBAY CJ, writing for the court, said:

“But in every appeal against sentence, save where it is vitiated by irregularity or misdirection, the guiding principle to be applied is that sentence is pre-eminently a matter for the discretion of the trial court and that an appellate court should be careful not to erode such discretion. The propriety of a sentence, attacked on the general ground of being excessive, should only be altered if it is viewed as being disturbingly inappropriate”.

In dismissing an appeal against an 18 months custodial sentence, of which six months imprisonment was suspended for 5 years on appropriate conditions, on a conviction of 3 counts of contravening s 3 (1)(a) of the Prevention of Corruption Act [Chapter 70] GUBBAY JA (as he then was), with the concurrence of other members of the court, made the following pertinent remarks on sentencing in corruption matters in the case of S v Ngara 1987 (1) ZLR 91 (SC) at 101 B-E:

“Any form of corruption resorted to by government servants, especially police officers whose duty it is to uphold the law and by their conduct set an example of impeccable honesty and integrity, is rightly viewed by the courts with abhorrence. It is a dangerous and insidious evil in any community and in particular requires to be guarded against in a developing country.

Corruption is a crime difficult to detect and more difficult to eradicate. If unchecked or inadequately punished, it will disadvantage society by depriving it of a good, fair and orderly administration. Deterrence and public indignation are the factors which must predominate above all others in the assessment of the penalty...

On no less than three occasions the appellant abused the trust and confidence reposed in him as a member of the police force. That he disgraced its good name cannot be gain said. A severe custodial sentence was clearly called for and I am satisfied that the magistrate awarded the appellant nothing more than he deserved. There is no room for this court to interfere with the sentence imposed”.

See also S v Lawrence and Others 1989 (1) ZLR 29 (S); Attorney-General v Paweni Trade Corp (Pvt) Ltd and Others 1990 (1) ZLR 24 (SC) at 42F-43B.

In S v Chogugudza (supra) GUBBAY CJ, after referring to a number of authorities on the principles of sentencing in corruption cases, said at 43C:

“...As a general rule, therefore it is right to approach such cases on the basis that imprisonment is called for unless there are cogent reasons which indicated the contrary...”

The trial court took cognisance of the fact that corruption is by nature a social evil, an obstacle to accessing basic services and hence undermines human development. It took the view that the crime is a challenge to democracy, rule of law, social development and economic growth. Also considered was the fact that appellant abused the integrity of the President’s Office, which is the highest office in this country. The court referred to S v Chogugudza (supra) where corruption was characterised as a special problem requiring extraordinary measures to eradicate. The offence was detected by the Zimbabwe Anti-Corruption Commission (“ZACC”) while it was investigating a different matter. So it was difficult to detect. It was neither the Office of the President and Cabinet nor anybody else, besides ZACC, which detected and thereafter investigated the crimes leading to the successful prosecution of the appellant. The trial court took into account the appellant’s status as a first offender and the more than twelve months that he spent in custody before he was convicted in suspending two years of the total six years imprisonment on conditions of future good behaviour. The magistrate considered that appellant abused his position of trust on no less than three occasions and that the offences were premeditated, carefully planned and executed. ZIMRA collects revenue for Treasury. The ultimate beneficiaries of the funds collected are the citizens of this country. Appellant solely benefitted at the expense of the entire nation.

The correct approach to sentencing in corruption cases is that imprisonment is called for unless there are cogent reasons justifying the imposition of a non-custodial sentence. Having found no such cogent reasons, I consider that the magistrate did not misdirect himself in imposing a custodial sentence. The crime of criminal abuse of duty as a public officer is a serious one, attracting the imposition of a severe sentence. See Undenge v State supra.

The sentence imposed is neither vitiated by any irregularity nor misdirection. It is not disturbingly inappropriate. It is not shocking.

Using our review powers, we acquit the appellant on the three alternative counts. The court a quo, having properly convicted on the three main counts, refrained from passing a verdict on the alternative counts. That is a misdirection.

In the result, there being no merit in the appeal against both conviction and sentence the appeal be and is dismissed in its entirety.

KWENDA J agrees ................................

Venturas & Samukange, appellant’s legal practitioners

The National Prosecuting Authority, respondent’s legal practitioners