Langton Ndlovu v Wright Kujoka and Moreblessing Kujoka and Director of Housing and Community Services, Kadoma

### Preamble
1
HH 797-18
HC 11414/16
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LANGTON NDLOVU

versus

WRIGHT KUJOKA

and

MOREBLESSING KUJOKA

and

DIRECTOR OF HOUSING AND COMMUNITY SERVICES, KADOMA

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 20 and 21 August 2018 & 28 November 2018

Continuous Roll

D Madanhe, for plaintiff

I Mataka, for 1st and 2nd Defendant

No appearance for the third defendant

DUBE J:  The plaintiff brings a claim for a house allegedly bought from proceeds of a theft of his gold ore.

The plaintiff’s claim is based on the following facts. The first defendant was formerly employed as a mine manager at Chad 7 Mine in Chakari, owned by the plaintiff from March to August 2016. The first defendant stole gold ore from the mine, had it secretly milled without his consent and sold it. He used the proceeds of the theft to purchase house number 1786 Waverly Township, Kadoma and registered it in both his and the second defendant’s names. The defendants have no entitlement to the house because it was bought from proceeds of an illegal and unlawful transaction. He wants it to be declared that the house belongs to him and seeks an order directing the defendants to transfer  rights, title and interest in the house to him.

The second defendant is the first defendant’s wife. The third defendant was cited nominally in its official capacity as the authority responsible for registration of properties. The first and second defendants deny that the first defendant stole gold ore from the plaintiff and used the proceeds to buy the house in issue. The court was asked to determine whether the plaintiff is entitled to transfer of rights, interests and title in house number 1786 Waverly Township, Kadoma or payment of $20 000.00.

The plaintiff testified in his own case as follows. He owns Chad Mine 7 and Brilliant Fore Mine and the first defendant was his mine manager from 30 March 2016 to the end of August 2016. He received information that the first defendant together with other employees were stealing gold ore from the mine and had bought houses from proceeds of the sale of the gold. What was allegedly being stolen was gold ore but investigations revealed that they stole gold nuggets extracted from the ore in the mine. Nuggets are pure gold and are found where there is a pocket but it is all ore. What was stolen is simply gold. Some of the employees admitted that they had been stealing and bought houses from the proceeds of crime. A report was made to the police and the first defendant was prosecuted and convicted of the offence of theft of gold ore. He recovered a total of 11 houses from the first defendant’s accomplices who implicated him.

The first defendant bought the house cash from proceeds of the theft. He could not have bought the house from his terminal benefits of $4760.04 from Zimasco because he was only paid in 2017. By that time he had already made a report of the theft in 2016 and the house had already been bought. He earned only $590, 00 a month after deductions and could not have bought the house from his own earnings. He does not believe that the first defendant was able to put together monies he earned at Zimalloys and his wife’s earnings to purchase the house. The first defendant has failed to show sources of income enabling him to purchase the house. The second defendant is just a joint owner, she was not involved in the purchase of the house. The prejudice he suffered from the theft is $300 000.00. He seeks to recover the house valued at $20 000.

The plaintiff called Zachariah Zimba as his next witness. His evidence is as follows. He worked for the plaintiff as a lashing gang leader. The thefts took place around June to August 2016. His duties involved getting into the mine after there had been an explosives blast. He would lead the way, make the mine safe and gather up the stones. The first defendant would follow him into the mine and collect gold ore and put it in a sack. He would hide it in the mine, retrieve it later and sell it without the consent of the owner of the mine. The first defendant would not take the nuggets to the mill. When the witness stole gold, the first defendant would advise the guards not to search him when he left with it and pay them. It was not the defendant’s role to get into the mine and get gold ore. Isaac Matswimbo who was in charge of drilling was involved when the gold was taken away for selling.

He would be given some money when the first defendant sold the gold ore and would receive payments of up to $8000.00 to $10 000.00 every time he took out the gold. He received a total of between $50 000 - $60 000.00 from the first defendant and bought two houses in cash. The first defendant bought a house around July and August 2016 from the sales of gold. He also bought a car. Many other people who include Damson Zakaria were involved and bought houses from proceeds of the theft of gold. He would sometimes steal gold on his own and the first defendant would assist him by talking to security guards so that he would not be searched. He would pay them for safe passage. The defendant would sell the gold at Diva Kachipere’s mine and to other buyers. He also benefited from the theft. He has surrendered both houses to the plaintiff. He did not report the thefts because he also benefited.

He insisted under cross examination that the first defendant stole with him. The police did not force him to admit the theft. He refuted suggestions that he was lying against the first defendant because he was not prosecuted for theft of gold and saved from jail by the first defendant who did not pursue charges against him. He asked for forgiveness after he had tasted jail life and co-operated with the plaintiff after he had been released on bail.

Norbert Rewu also testified in the plaintiff’s case. He was employed by Shepherd Mharadze and Mr. Kachipere as a security guard at Rando Mine in Chakari. The mine used to buy gold. The defendant was a regular customer. He first met the first defendant when he came in a car selling gold. He was at the gate when he came the first time. He went to a small room and milled his ore and went away. After he left, the buyer told them that he had bought gold pieces from the first defendant. This happened around June or July 2016. He came on a second occasion and sold more gold. He also witnessed other employees namely, Mataga, Zakaria Zimba and Damson Zakaria coming to sell gold. Some sales would take place when he was away. Under cross examination he explained that the statement he made to the police to the effect that the fist defendant had come only once to sell gold is not correct. He mixed up the names because of the number of people involved when recording statements. He clarified this in the criminal court. It is Mataga who came once. He insisted that the first defendant came twice to sell gold in his presence.

The defendant testified in his own case. His evidence is as follows. It was his duty to enter into the mine but he did not enter the mine and steal gold ore or nuggets with the second witness or other employees as alleged. He never sold stolen gold. He never gave Zimba any money. The plaintiff’s witnesses are falsely implicating him.

He earned $595.00 per month.  He bought the house at the end of August 2016 with monies he raised from his various projects during the time he was still employed by the plaintiff. He makes money out of a lot of businesses he runs. He had a contract with Zim Alloys to mine chrome since 2015 and he was paid through the bank. He received his retrenchment and pension package of $379 393 and $680.00 from Zimasco which was paid in 2017 after the criminal proceedings were finalized. He had a contract with Jin An Corp where he was paid $4 000.00 for chrome. He got about $8 000.00 to $10 000.00 from selling explosives.  He is a tributer and has mines. He supplied chrome to Afrochine. His bank statement has over $17 000.00. His wife did buying and selling as a cross border trader and they would put their money together to buy the house. He had other deals which he cannot account for due to time. He bought a car for $3 225.00 and not $6 000.00 from his own money. The plaintiff never asked him if he had any other sources of income. Under cross examination he accepted that he may have omitted to mention that he had made money by selling explosives during the criminal prosecution. He forgot. He conceded that the permit for explosives carried a prohibitive clause which permitted Makdesh Divine Mine to acquire and possess certain number of explosives and that the permit could not be transferred and rights under it could not be ceded and it could be used at Rhodesdale 1 Mine only. He does not have any invoices or receipts for the explosives sold.

It is common cause that the first defendant was employed at the plaintiff’s mine as a manager. His employment was terminated after information emerged that he was stealing gold ore or gold nuggets from the mine. He bought the house in issue on 31 August 2016. He was prosecuted together with his workmates and convicted for contravening s 113 (1) of the Criminal Law (Codification and Reform) Act as read with s 8 (3) of the Money Laundering and Proceeds of Crime Act [Chapter 9:24]. He was sentenced to a custodial sentence and ordered to restore possession of the house to the plaintiff. He has appealed against the sentence and has not returned the property. The issue is whether the defendant stole gold ore or nuggets and used the proceeds to buy the house entitling the plaintiff to claim it from the defendants being proceeds of crime.

The plaintiff‘s evidence is to the effect that he received information of the theft resulting in the prosecution of the accused. He has no firsthand information about the theft. The defendant’s denial was a bare denial. The plaintiff’s first witness Zacharia Zimba told the court how he and other employees would steal gold. He testified that the defendant would enter into the mine after blasting and steal gold ore which the first defendant would hide and go and sell. They stole with other employees. After the sale he would be given some of the money and they bought houses. The evidence of the first witness reveals that huge amounts of money were made from the sale of the gold. He was unable to say how much gold was sold and its value. His evidence was not meaningfully challenged. The first defendant did not dispute that Zacharia Zimba bought two houses after the thefts. The court is alive to the fact that that Zacharia Zimba is an accomplice witness and ought to be treated with caution. He also benefitted from the crime. He seemed to be a person who wanted forgiveness and just wanted to clear his conscience. The court did not get the impression that he was being malicious and falsely implicating the defendant. He gave a convincing story regarding the fact that the defendant had stolen gold with him and others. He did not waiver under cross examination. I believed him when he said that he would steal gold with the defendant and that he bought a house from proceeds of the theft.

Norbett Rewu told the court that he saw the first defendant on two occasions when he came to the mine where he worked. His evidence was not meaningfully challenged. The evidence shows that the defendant may have indeed sold gold. He confirmed Zechariah Zimba’s evidence that the first defendant sold gold at Kachipere’s. Whilst the gold nuggets may have been stolen, milled and sold, the court does not know the quantities of the gold stolen and how much was realized.  The evidence led shows that the defendant and his accomplices stole gold ore or gold nuggets from the plaintiff’s mine and sell it at Kachepere’s mine. Rewu’s evidence supports Zacharia Zimba’s evidence that the first defendant would sell the gold at Kachipere’s. I believed Rewu. It did not appear that he was lying. Besides the confusion over the number of times the first defendant sold gold in his presence, I believed him. He explained the discrepancy in his evidence well. It was not shown that he has any reason to lie against the first defendant.

There is direct evidence of theft. Evidence was clear that the first defendant would steal gold ore and gold nuggets. The first defendant took advantage of his position to steal. Sometimes he would mill the ore. The coincidence that the first defendant gets new employment at a mine, allegations of theft of gold arise and suddenly within three months he and his accomplices  buy houses is too much. A total of 11 houses were recovered. The reasonable inference to be drawn is that he together with his accomplices stole gold from the mine where he worked.  The probabilities are that the first defendant and his accomplices would steal gold ore or nuggets. Whether what was stolen was gold nuggets or gold ore does not assist the defendants.

A thief has no entitlement to hold onto property derived from proceeds of crime. Silberberg and Schoemann, the Law of Property, Fifth Edition at p83 state the general principle of law as follows,

“ The general principle is that nobody is entitled to derive benefit or advantage from his own bad faith. (nemo ex suo delicto medliorem suam conditionem facere potest)”

A property is said to be proceeds of crime where it is shown that it was derived directly or indirectly from proceeds of a crime. If money has been obtained from the sale of stolen property, it is proceeds of crime. If that money is in turn used to purchase a property, that property is liable to be recovered by the owner of the stolen property in civil proceedings. A litigant who brings a delictual claim for recovery of a property bought from criminal proceeds of crime must prove that such property is a benefit from criminal conduct and that it was bought by means of some economic advantage derived directly or indirectly from a criminal offence. The value of the property must be out of proportion to the defendant’s income and expenditure.

Evidence of the origins of crime may come from accomplice evidence and the plaintiff himself. In the absence of direct evidence that a property was derived from crime, the plaintiff can rely on circumstantial evidence. In that case, it would have to be shown that the irresistible inference is that the property was derived from crime. The plaintiff must show that economic advantage was derived from the crime. It must be shown that the value of the money used to purchase the property is grossly out of proportion to the defendant’s income and expenditure. A causal link must be shown between the crime and the property allegedly bought from proceeds of crime.

In Milner v Minister of Pensions 1947 2 ALL ER 372 at p 374, the court remarked as follows on onus in civil proceedings,

“ It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say “we think it more probable than not’’ the burden is discharged, but if the probabilities are equal it is not.” See also Zesa v Dera 1998(1) ZLR 500 (SC).

The golden rule of onus of proof is that he who alleges must prove. The onus in a civil case is on a balance of probabilities and is much lower than the burden in the criminal trial. It is based on probabilities. It must be shown that it is probable that what the plaintiff alleges is the correct state of affairs. The plaintiff has the burden to prove on a balance of probabilities that there was a theft of gold ore or nuggets and that the source of the property was proceeds of crime. Once the plaintiff has proved a discrepancy between the defendant’s income and the assets the defendant has, the onus shifts onto the defendant to prove that the property was lawfully acquired. A plaintiff seeking civil remedies to recover proceeds of crime need not show that the defendant was convicted of any offence.  All the court has to be satisfied with is that the property has a criminal origin using the standard of proof in civil proceedings.

The first defendant told the court that his money came from legitimate earnings. He testified that he had other income generating activities that enabled him to generate money used to buy the house. Whilst the first defendant testified in his evidence in chief said that he used some of the money he received from his retrenchment package from Zimasco to buy the house, he conceded under cross examination that he received the money well after he had already bought the house. The defendant therefore could not have used this money to buy the house. The first defendant lied that he used funds from his retrenchment package to buy the house. The court was not convinced that he used to sell explosives. He did not furnish the court with any tangible proof of the sale of the explosives. The permit he says he used to use to deal in explosives belonged to the manager of Mkadesh Mine and is for a specified number of explosives. There was no proof that he is the said manager, He failed to tell the court the markup he would put on the explosives and how he made the money out of the explosives. He failed to tell the court about the explosives during the criminal trial. It is an afterthought.

The defendant told the court that payments for chrome were paid into his account. The defendants produced a bank statement with an inflow amounting to $17 000.00 which excluded the remuneration he got from his employment. Between March and August 2016 the account was credited with only about $3560.00 all from Zim Alloys .As soon as the money was put into his account, he would immediately use the money leaving small balances. It is obvious that he sustained himself from the same monies. He also bought a vehicle. The court did not believe the  first defendant when he stated that the moneys he withdrew were kept at home and later used to buy the house. This was not pleaded. Evidence reveals two invoices which support the assertion that he supplied coal to Afrochine but there is no indication of amounts involved. The defendants produced a supply purchase contract between him and Jin An Corporation but there is no evidence that he supplied coal to it. They did not supply receipts or invoices for the consignments.

The defendant did not produce proof of sales in the form of receipts or payment vouchers to show that he received income from his other various businesses. The defendant failed to bring sufficient proof to show that he was indeed engaged in meaningful other income generating projects. The income he generated is insignificant. It is unlikely that would   have been able to save money amounting to $20 0000.00 within that short space of time from his other earnings.

The assertion that his wife was a cross-border trader was not pleaded. Such a state of affairs was not proved. No passport was not tendered to show her travels. Her actual contribution towards the purchase of the house was not stated. It is only emerging in this trial that she contributed towards the purchase of the house.  The defendant failed to tell the criminal court about this contribution. She was not called to explain her contribution and failed to show her contribution. The second defendant was included on the deed of cession as a joint owner only for the reason that she is his wife. The defendant’s defense is contradictory, a recent fabrication and clearly an afterthought. Where a defendant’s plea tendered on the same facts is materially different from that given in a different court, his defense must be regarded as false and discarded by the court.

There is no direct evidence that shows that the money used to buy the house came from the proceeds of the crime complained of. It can reasonably be inferred that the property was bought from proceeds of crime. Firstly, there was a theft at the mine where the defendant used to work and the first defendant bought a house during the brief period that he was employed there. The evidence reveals that he was the mastermind. His subordinates have implicated him. The defendant and his accomplices have all been shown to have bought houses during the same period. The defendant failed to explain how his house was bought during the same time when his accomplices also bought their own houses from ill-gotten funds. He has not given a satisfactory account of the source of monies used to buy the house. The irresistible interference the court draws is that the house was derived from money realized from the stolen gold. It is more probable than not, that the defendant stole gold ore or nuggets and used the proceeds to buy the house. The purchase of the house is not supported by his legitimate earnings. A causal link has been shown between the crime and the house.

The first defendant was in full time employment. The defendant’s supposed sources of income were not declared to the plaintiff. These sources of income are not mentioned in the defendants’ plea. They only mention the package from Zimasco in their summary of evidence. The defense they raised in their plea is materially different from the defense raised in the criminal court. The defendants are not being truthful. The suggestion that they had many other earnings is an afterthought. The value of the house which is placed at $20 000.00 is out of proportion to the defendants’ income. I am satisfied that the money used to purchase the house has a criminal origin and was bought from the theft of gold. The plaintiff has shown an entitlement to transfer of rights, title and interest in house number 1786 Waverly Township Kadoma. The restoration order does not bar the defendant from bringing proceedings to recover the house.

In the result it is ordered as follows:

The plaintiff has rights and interest in house number 1786 Waverly Township Kadoma

2.  The first and second defendants are ordered to sign all papers necessary to facilitate

cession of rights, title and interest  in respect of the house number 1786 Waverly

Township, Kadoma into the plaintiff’s name.

3.    In the event that the first and second defendants fail to sign such papers within (48

hours) of service upon him of this order, the Deputy Sheriff is directed to sign papers in

their place and stead.

4.   The first and second defendants are to pay the costs of suit jointly and severally the one

paying the other to be absolved.

Mangeyi Law Chambers, plaintiff’s legal practitioners

Chambati, Mataka and Makonese, defendants’ legal practitioners.