Bridget Magunha v The State

### Preamble
1
HCMTJ 45/24
HCMTCR 1713/24
3
HCMTCR 1713/24
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BRIDGET MAGUNHA

versus

THE STATE

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE 30th SEPTEMBER & 3rd OCTOBER 2024

Application for bail pending appeal

Mr T. Musara, for the applicant

Ms T. Katsiru, for the respondent

SIZIBA J: The applicant has approached this court seeking to be admitted to bail pending appeal. The application is opposed by the State on the ground that there are no prospects of success in her appeal. The applicant was convicted and sentenced on charges of fraud (3 counts) contrary to s 136 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) on 2 August 2024. The total effective sentence was thirty (30) months imprisonment after portions of it were suspended on conditions of good behavior and compensation to the victims. Her appeal is against both conviction and sentence. The circumstances of the case are that the applicant was engaged by the three complainants on independent occasions to help them to secure work permits and visas so that they could go and work abroad. There is a contention that appears in the record of proceedings whereby the applicant maintained that she played her part in assisting on the paperwork in order to secure the relevant documentation but she had no power to influence the work of the embassies in granting or refusing the permits. She argues that she was thus wrongly convicted since she did play her part. It is common cause from the record of proceedings that the complainants did receive some of the permits while some of the permits and visas were not approved.

A perusal of the proceedings in the lower court shows that indeed some of the papers were received by the complainants. The complainant in the first count even went as far as lodging an appeal in respect of the papers which were outstanding at the South African embassy through the help of the applicant. The record shows that the applicant’s assertion that she did what she was contracted to do and that the complainants got upset because of the unfavourable outcome could find favour with the appellate court. Another cause for concern is that even the learned trial magistrate seems to have been misdirected on the elements of the offence of fraud. There was no need to place any emphasis on whether the applicant was a registered agent or not or as to whether she was being assisted by other people outside the country in discharging her duties. As long as one accepts that the applicant would compile the necessary paperwork and lodge it with the relevant embassies for consideration, the element of misrepresentation falls out. The last sentence in the judgment of the learned trial magistrate reads as follows:

“The court will state that there is overwhelming evidence that the accused failed to carry out the duties as promised and I find the accused guilty as charged.”

The above conclusion is worrisome. The leaned magistrate does not seem to have been alive to the fact that the offence alleged was of fraud as opposed to a breach of contract. The inquiry was akin to that which a civil court would take interest at rather than what a criminal court in a charge of fraud would look out for. I therefore conclude that there are prospects of success on the appeal against conviction. Whether the appeal against conviction will ultimately succeed or not is not relevant at this stage. It suffices for now that the appeal cannot be said to be doomed to fail.

Regarding the appeal against the sentence, I agree that the applicant has a fighting chance as well. Counsel for the appellant referred to the case of Sangu v The State HH 591-16 where my brother Chitapi J concluded that an effective sentence of two years imprisonment on a charge of fraud was manifestly excessive as to induce a sense of shock in a case where the total prejudice was US$12 279. The applicant in that matter was granted bail pending appeal. In this matter, the total prejudice is far much less in the sum of US$6000. I therefore find that there are prospects of success as well on the appeal against sentence.

Having made the above conclusions, I will therefore order as follows:

The applicant be and is hereby granted bail pending appeal on the following conditions:

That she deposits a sum of US$300.00 or local currency equivalent with the Clerk of Court, Rusape.

That she surrenders her passport, if any, to the Clerk of Court, Rusape until the appeal is finalized.

That she continues to reside at number 1244 Tsanzaguru, Rusape until the appeal is finalized.

That she reports once every Friday at Rusape Police Station between 0600 hours and 1800 hours.

Gonese & Ndlovu, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners