Fungayi Nyangari and Heather Samu v State

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FUNGAYI NYANGARI
and
HEATHER SAMU
versus
STATE


HIGH COURT OF ZIMBABWE
OMERJEE & MUSAKWA JJ
HARARE, 12 JULY AND 13 SEPTEMBER 2011

Criminal Appeal


B. Pesanai, for first appellant
I. Mugwagwa, for second appellant
E. Nyazamba, for the respondent

        MUSAKWA J: The appellants were convicted of contravening section 136 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23]. Each of them was sentenced to
four years imprisonment of which one year was suspended for five years on condition of good
behavior. Another one year was suspended on condition that each appellant restituted the
complainant in the sum of US$7 600 by 31 February 2010.

        At the time of the commission of the offence the first appellant was unemployed although
she is a qualified teacher. The second appellant was employed at Metropolitan Bank. The
complainant Oren Rukwava was engaged in the business of retailing computer accessories.

        According to the allegations in the outline of state case on 25 th September 2007 the first
appellant and her sister Mary Nyangari approached the complainant and sought to borrow some
money. They agreed with the complainant that would make electronic transfer of local currency
equivalent to US$16 000 into the accounts of the complainant’s creditors whose details were
availed to the first appellant and her sister.
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       On the same date the complainant, the first appellant and Mary Nyangari went to
Metropolitan Bank in Central Avenue. Inside the banking hall Mary Nyangari handed over
electronic transfer documents (RTGS) to the second appellant who stamped them in the full view
of the complainant. The first appellant was then handed US$16 000. It was subsequently
established that the RTGS forms were fake and this led to the appellants’ arrest.

       From the evidence led the first appellant approached the complainant seeking foreign
currency. It was agreed that the first appellant would give the complainant the equivalent in local
currency which would be transferred into the complainant’s creditors’ accounts electronically.
Between the 25th and 27th September the complainant gave the first appellant the sums of US$8
000, US$5 000 and US$3 000.

       The first appellant’s defence was that her role was simply to introduce her sister, Mary
Nyangari who purchased foreign currency from the complainant. Mary Nyangari was the one
who held an account with Metropolitan Bank from which the electronic transfers were to be
processed. Although she admitted that she is the one who collected the foreign currency from the
complainant, she claimed to have done so on behalf of her sister. She further claimed to have
been paid US$150 by her sister for her efforts.

       The second appellant’s defence was that she did not process the electronic transfer forms.
It was further her case that electronic transfer forms are processed at the back office after bank
balances have been verified.

       The RTGS forms that were produced as exhibits show that the purported applicant was a
company called Clipsap. They were signed by M. Nyangari. They bear Metropolitan Bank
stamps dated 25th and 26th September 2007. The portion for bank use was left blank.

The Liability of First Appellant

       It was contended on behalf of the first respondent that the trial court erred in not treating
the complainant as a suspect witness. In this regard it was further contended that the complainant
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was evasive on the true nature of the transaction between him and the first appellant. In addition,
it was also contended that the trial court erred in basing first respondent’s liability on the mere
fact that she is the one who collected money from the complainant.

         Even though the complainant initially downplayed the illegality of the transaction the
evidence is clear enough that it involved unlawful dealing in foreign currency. The first appellant
did not deny that save to claim that she collected the foreign currency on behalf of her sister. Her
conduct is not consistent with the innocence she claimed. On all three instances she is the one
who collected the money from the complainant and went with him to the bank where the phoney
processing took place. It is incredible that she could have made all those efforts for a reward of
US$150.

          The evidence also shows that the complainant only got to know that Mary was involved
after the first appellant implicated her. In essence the first appellant and her sister would qualify
as co-perpetrators of the offence. In this respect s 195 of the Criminal Law (Codification and
Reform) Act provides that-

“(1) Subject to this section, where
(a) two or more persons knowingly associate with each other with the intention that each or any of them
shall commit or be prepared to commit any crime; and
(b) any one of the persons referred to in paragraph (a) (“the actual perpetrator”) commits the crime; and
(c) any one of the persons referred to in paragraph (a) other than the actual perpetrator (“the coperpetrator”)
is present with the actual perpetrator during the commission of the crime;
the conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or
not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual
perpetrator.
(2) If the State has established that two or more accused persons—
(a) were associated together in any conduct that is preparatory to the conduct which resulted in the crime for
which they are charged; or
(b) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime
for which they are charged;
and that they were present at or in the immediate vicinity of the scene of the crime in circumstances which
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implicate them directly or indirectly in the commission of that crime, then it shall be presumed, unless the
contrary is shown, that—
(c) they knowingly associated with each other for a criminal purpose; and
(d) the crime actually committed—
(i) was the crime for the commission of which they associated with each other; or
(ii) was, if not the specific crime for the commission of which they associated with each other, a
crime whose commission they realised was a real risk or possibility.
(3) If any accused person referred to in subsection (2) who is not the actual perpetrator of the crime—
(a) does not discharge the burden mentioned in subparagraph (i) or (ii) of paragraph (d) of subsection (2),
his or her liability as the co-perpetrator of the crime shall not differ in any respect from the liability of
the actual perpetrator, unless he or she satisfies the court that there are special circumstances peculiar to
him or her or to the case (which circumstances shall be recorded by the court) why the same penalty as
that imposed on the actual perpetrator should not be imposed on him or her; or
(b) discharges the burden mentioned in subparagraphs (i) and (ii) of paragraph (d) of subsection (2), he or
she shall be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory.
(4) Where there is a dispute between or among two or more accused persons referred to in subsection (1) as
to the identity of the actual perpetrator (which dispute cannot be resolved by reference to the evidence that is
available to the State) the burden of proving that any particular accused person did not actually perpetrate the
crime shall rest with that person.
(5) If any of the accused persons referred to in subsection (4) fails to discharge the burden there referred to
and the actual perpetrator is not identified, the accused person or persons concerned shall be liable for punishment as
if he or she or each of them was the actual perpetrator.
(6) It shall not be necessary to prove that there was a prior conspiracy to commit the crime for the
commission of which a person is associated with another person or other persons in order for a court to find that any
person is liable as a co-perpetrator of any crime.
(7) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual
perpetrator of the crime as an accomplice or accessory if such are the facts proved.
(8) For the avoidance of doubt it is declared that this section may not be used to convict a co-perpetrator of
murder unless he or she was present with the actual perpetrator while the victim was still alive and before a mortal
wound or mortal wounds had been inflicted.”


The Liability of Second Appellant
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           The second appellant’s contention was that she was mistakenly implicated because as
supervisor she sometimes served clients at the counters. It was further contended that it was not
proved beyond reasonable doubt that she is the one who “processed” the RTGS forms. This is
because closed circuit camera footage that could have captured the specific teller was no longer
available. In addition she did not sign the forms in question.
           Two aspects of the complainant’s evidence remained unchallenged. He testified that on
the first day when they went to the bank he was surprised that despite other tellers being free the
first appellant waited for the second appellant to serve three other customers before she
approached her. One can only infer that the first appellant wanted services provided at that
counter or she was known to the second appellant.
           As it turned out the appellants were known to each other. This is because as the first
appellant presented the RTGS forms on the second occasion, the second appellant is said to have
remarked that-
“Fungayi, your business is vibrant!”
           This piece of the complainant’s evidence was not challenged by the second appellant. As
it turned out the RTGS forms were not entered into the bank’s system. Although they bore a
bank stamp, it was fake. The complainant’s evidence was that he saw the second appellant with
three bank stamps. I would hold that the second appellant’s liability as an accomplice was
established through this evidence. In this respect s 195 of the Criminal Law (Codification and
Reform) Act defines an accomplice as-


““accomplice” means a person, other than an actual perpetrator of a crime
(a) who incites or conspires with an actual perpetrator to commit a crime, with the result that a
crime is subsequently committed; or
(b) who, having authority, whether lawful or otherwise, over an actual perpetrator and
(i) knowing that an actual perpetrator intends to commit a crime; or
(ii) realising that there is a real risk or possibility that an actual perpetrator intends to commit
a crime;
authorises the actual perpetrator to commit the crime; or
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(c) who
(i) knowing that an actual perpetrator intends to commit a crime; or
(ii) realising that there is a real risk or possibility that an actual perpetrator intends to commit
a crime;
renders to the actual perpetrator any form of assistance which enables, assists or encourages the actual
perpetrator to commit the crime;
“actual perpetrator”, in relation to a crime, means a person who, with the requisite state of mind actually
does, completes or omits to do anything the doing, completion or omission of which constitutes that
crime;”


           Although the trial court did not specifically single out the provisions of the Act, it is
inescapable from its judgment as well as the evidence that both appellants’ liability was
established on the basis of these provisions.

Propriety of the Sentence

           The overall thrust of submissions made on behalf of the appellants is that the sentence is
manifestly excessive as the trial court did not consider the imposition of a non-custodial
sentence.

           The starting point to note is that the assessment of sentence is the discretion of the trial
court. It is trite that an appellate court can only interfere with a sentence where it does not accord
with sentences imposed in similarly decided cases or where there is some irregularity.

           In the present case there is no doubt that the offence is serious as it involved a substantial
sum which was not recovered. It is a salutary principle in sentencing that an accused should not
benefit from the commission of the offence.

           In my view, there was nothing amiss in suspending a portion of the sentence on condition
of restitution. An order of restitution serves a dual purpose. It encourages the offender to make
good the wrong. It also offers the offender the opportunity to mitigate the sentence in the event
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of the full restitution. In the present case, taking into account that the appellants did not volunteer
to restitute one cannot hold that the suspension of one year was inadequate.

         See for example the case of S v Zindoga 1988 (2) ZLR 86 (SC) in which the appellant
was sentenced to a total of six years imprisonment for embezzling R19 743, 03. Commenting on
restitution GUBBAY JA had this to say at p 90-91-

“Where an accused person is in a position to make restitution, two competing interests arise and a balance must be
struck between them: On the other hand, there is the interest which the public has in the avoidance of loss by the
victims of the crime; and it is the court's duty, where possible, to provide an incentive to the accused person in the
manner of its punishment to make good that loss. On the other hand, there is the public interest in the passing of a
sentence which will deter others from perpetrating such offences.

The impression must not be permitted to go abroad that the making of restitution will almost invariably be regarded
as countering the dishonest transgression to the extent of resulting in a non-custodial punishment. Each case must be
adjudged on its own merits, and the mitigatory feature of restitution taken in conjunction with others which reduce
the moral blameworthiness       of the miscreant, are to be weighed against the nature of the offence and any
aggravating features which relate to it.

In this case, I am not prepared to interfere with the overall sentence of six years' imprisonment with labour. I
consider it as somewhat on the high side and would have preferred the imposition of one year less. But, looked at
primarily as a punishment for what was a serious and prevalent offence, it cannot, in my opinion, be criticised as
being disturbingly inappropriate. See S v Wakiri 1981 ZLR 51 (AD) at 53A.

What I do say, however, is that, having restituted in full, the appellant does not deserve to be incarcerated for four
years. To leave the sentence in its present form would be to give insufficient credit to the appellant's efforts in
making good the loss he caused the Trade Mission. If such a sentence as this were allowed to stand, it could be
viewed by the criminally-minded as a disincentive to make restitution.”

         In light of the above remarks it was not shown that the sentence imposed by the trial
court was manifestly excessive. As it turned out from additional information filed by Mr
Nyazamba Mary Nyangari was subsequently convicted and sentenced to five years imprisonment
of which one year was suspended on condition she restituted complainant in the sum of US$16
000 on or before 31st July 2011. If the appellants had both paid restitution by the given date it
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follows that Mary Nyangari would not pay a similar amount as the complainant would be
unjustly enriched. The same would apply if Mary Nyangari paid restitution before the appellants.

       In the result, the appeals by both appellants are dismissed in their entirety.




Omerjee J agrees




IEG Musimbe & Partners, first appellant’s legal practitioners

Masawi & Partners, second respondent’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners