Michael Chivhanganye v The State

### Preamble
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HH431-13
B 1010/13
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MICHAEL CHIVHANGANYE

versus

THE STATE

HIGH COURT OF ZIMBABWE

TAGU J

HARARE 25 NOVEMBER 2013

BAIL PENDING APPEAL

O. Shawa, for applicant

Miss S. Fero, for respondent

TAGU J: 	The applicant was convicted by a magistrate court sitting at Harare on a charge of contravening section 136 of the Criminal Law (Codification and Reform) Act [Cap 9.23]. It was alleged that on the date unknown to the prosecutor but during the period extending from July 2012 to June 2013 and at LL Promotions, Harare, applicant unlawfully and with intend to defraud or realising that there was a real risk or possibility of defrauding, misrepresented to complainant Langton Chawota that he had a diplomatic bag in Benin, which contained USD 10 million which he wanted to be repatriated to Zimbabwe and needed money for it to be released and the complainant acting on this misrepresentation paid a total amount of USD 115 000.00 to applicant who well knew that there was no such money causing complainant to suffer actual prejudice of USD 115 00.00. He was sentenced to 7 years imprisonment of which 2 years was suspended on the usual condition of good behaviour and another 2 years suspended on condition of restitution leaving an effective sentence of 3 years imprisonment.

Dissatisfied with both conviction and sentence, the applicant noted an appeal to this court. He then filed this application for bail pending appeal. The application is opposed. The factors that the court has to take into account in determining an application for bail pending appeal have been well debated in a number of cases such as-

S V Tengende and Others 1981 ZLR 445 (SC)

S V Dzawo 1998 (2) ZLR 536

S V Kiplin 1978 RLR 282 (AD)

S V Williams 1980 ZLR 466 (AD)

S V Benator 1985 (2) ZLR 205.

The two major factors to consider are:-

(a) 	Prospects of success on appeal and,

(b)		Likelihood of abscondment.

However these two factors are interwoven. The more likely the prospects of success on appeal, the less likely chances that Applicant wound abscond. Similarly, the less prospects of success may induce the applicant to abscond. See S V Jongwe SC 62 / 02.

In casu, I have been urged to exercise my discretion in favour of the applicant. Mr Shawa submitted that there are prospects of success more particularly in that the court a quo misdirected itself in assuming jurisdiction in a civil matter. His argument was that it was applicant’s failure to repay a loan by 8 April 2013 that brought about the fraud charges against him. He argued further that there was no complainant in this case. He argued that the complainant should have been LL Promotions and not Langton Chawota. He further argued that the essential elements of the charge of fraud were not established. On the issue of sentence he argued that it was harsh so as to induce a sense of shock and that the court should not have made an order for restitution where it was clear the applicant was unable to pay.

On the issue of essential elements that the state was supposed to have established Mr Shawa submitted that the state should have established that :-

“ (a) 	Applicant should have intended to deceive Complainant (LL Promotions) or should have realised that there was a real risk or possibility that Complainant would be deceived and

(b)	 Applicant should have intended Complainant (LL Promotions) to act upon his misrepresentation that he had a diplomatic bag containing $ 10 million United States of American dollars, when in fact none existed.

Even if the above is satisfied, the Applicant would only be guilty if;

(c) 	Complainant suffered actual prejudice as a result of the misrepresentation or if the misrepresentation was potentially prejudicial.”

Miss S. Fero submitted that indeed an offence of fraud was committed. In strengthening her argument she relied on two case authorities. In S V Regis 1972 (1) RLR 110, a case where the accused obtained a loan of money from the employer by falsely representing the purpose for which the loan was required, the court held at 111 B- C that:

“By reason of misrepresentation relating to the accused’s allegedly urgent need of the money, the complainant was induced to exchange his existing rights of ownership in his money for the contractual rights of a lender thereof and it is this alteration in the complainant’s position which clearly establishes the element of prejudice. It begs the question to reflect upon whether or to the complainant’s rights as a creditor (which is what the fraud induced him to become) would have been  any better had the purpose of which the loan was allegedly required not been false”

HONOURABLE BECK J , the review judge then went on to confirm the conviction on a fraud charge.

Miss S Fero further referred the court to the case of S V Huijzers 1988 (2) SA 503. The court held that where complainants are induced by misrepresentation to exchange their ownership in money for that of a right to claim such money, such alteration in their position is sufficient to establish prejudice and sufficient to constitute the crime of fraud. The court further held that:-

“Fraud is committed where the complainant is induced to make a loan to the accused by reason of a false representation made by the latter as to the purpose for which the loan is required. By reason of the misrepresentation, the complainant is induced to exchange his existing right of ownership in his money for a right to reclaim such and it is this alteration in his position which constitutes the element of fraud.”

In casu Miss Fero argued that the applicant misled the complainant to believe that the box not only existed but contained cash to the tune of US$10 million as such the complainant was induced to lend him the said money.

I have indeed read the whole record. It is not in dispute that the applicant received various sums of money from the complainant totalling about $115 000.00. I also read the applicant’s defence outline as well as the evidence of the complainant. It is apparent that the complainant Langton Tapiwa Chawota was employed by LL Promotions as a Managing Director. It is also not in dispute that the applicant in all the occasions he was given money he approached Langton Chawota at his work place. Perusal of the record does not show that money was being borrowed from the company. What is clear is that when the money was being taken by the applicant he was coming with various excuses. It is clear from the evidence that Langton Chawota only decided to consolidate all the money he had been advancing to applicant at a time the applicant was now evasive. Langton Chawota then reduced to writing the money lent when he was now contemplating taking the matter to the police. This gave birth to the so called loan agreement or acknowledgment of debt. Langton Chawota then used a paper with the company letterhead. Even if the money is said to have belonged to the company there is nothing wrong if Langton is taken as the complainant because he is the one who handed the money to the applicant. In his defence outline the applicant now says he talked of a diplomatic consignment that contained wills, title deeds, books, documents, maps and a few personal precious items worthy US$10 million. However, none of the exhibits that he produced showed for certainty that such a consignment ever exists. He even failed to give physical addresses for some of the properties for which he had title deeds.Even his offshore accounts are suspicious. He in fact has no money amounting to US$3 500 000.00. If he had such money and the IMF had cleared it there is no reason why he is up to now unable to clear his bag. From the evidence the issue of non-existent bag or consignment was a ploy to defraud the complainant.

The applicant therefore has no prospects of success on appeal against conviction. Neither are there any prospects of success against sentence. Even if the appeal court were to interfere with the sentence he will still face a long jail term. Because applicant has external connections he is a flight risk if released on bail pending appeal.

In the result I make the following order:

The application for bail pending appeal is dismissed.

Mbidzo, Muchadehama & Makoni, applicant’s legal practitioners

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