Thabo Mpofu v The State

### Preamble
1
HMT 73-20
CA 19/20
---------


THABO MPOFU

and

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 30 September 2020 and 29 October 2020

Criminal Appeal

C Chibaya, for the Appellant

Mrs J Matsikidze, for the Respondent

MUZENDA J: This is an appeal against conviction of the appellant by the Provincial Magistrate sitting at Mutare on 20 March 2020.

FACTUAL BACKGROUND

The appellant was charged with fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State alleged that on diverse fifteen occasions at Mutare Bottling Company, 18 Riverside Road, Mutare, appellant and his two co-accused acting in connivance and in association with each other unlawfully made representations to the complainant company by crediting various amounts of money into Ukuzenzele Marketing Enterprises’ complainant credit account purporting that Ukuzenzele had paid such amounts to complainant servicing its debts, intending to deceive complainant.

Appellant was employed by complainant as an accountant and based at Mutare. On 30 April 2016, Tariro Maringapasi, (who was the third accused in the lower court) retired from complainant’s employment. He established Ukuzenzele Marketing Enterprises (Private) Limited (UME) whose core business was to sell drinks purchased from the complainant. On 26 April 2016 UME entered into a distribution memorandum agreement with complainant as the sale distributor of complainant’s products at Dangamvura and Vengere bus terminals with a customer credit limit of $21 000-00 as from 6 May 2016.

From the period November 2016 to May 2017, the State alleged that one Stewart Chidawanyika (who was accused one in the court a quo) employed by complainant as a debtors controller would post into appellant’s ledgers payments received from complainant’s debtors and appellant through the use of such journal entries credit UME’s account purporting that UME had made the payments. After that transaction, UME’s director or proprietor (third accused in the lower court) would then sign on the debtor’s confirmation prepared by the appellant acknowledging UME’s outstanding balance as confirmation of payment to ensure that UME’s credit was within the stipulated credit limit. All this was done by appellant and his co-accused when they were aware that UME had not paid anything. As a result of the fictitious credits to UME complainant suffered a loss of $82 588-50 in form of goods delivered to UME.

PROCEEDINGS OF THE COURT A QUO

It was the State’s allegations that on fifteen occasions appellant in collusion with his co-accused would reverse payments transactions by customers of Mutare Bottling Company and then credit the amounts to the credit accounts of Ukuzenzele Marketing Enterprises, an entity owned by one of the appellant’s co-accused in the court a quo.

Appellant denied the charges. He told the court that he never improperly reversed any credit to any customer’s account nor did he improperly credit UME’s account with the reversed amounts. The owner of UME denied any collusion with the appellant and told the trial court that he only signed the acknowledgment of debt on the assumption that he would resume trading.

After hearing evidence of both the State and defence the lower court acquitted appellant’s co-accused who was his assistant on lack of evidence against him. The trial court could not believe the evidence of Liberty Kanyama in relation to appellant’s co-accused. The court a quo however concluded that on all the 14 counts which it deemed fraudulent reversals the user name was that of T. Mpofu, it was T. Mpofu who signed the acknowledgment of debts document which reduced appellant’s co-accused’s company UME. The lower court indicated in its judgment that the issue for determination before it was to establish whether the appellant connived to reverse legitimate payments by other customers and then credit them into UME’s account so that its owner would continue to receive products from the complainant as if the account was well serviced.

In absolving the appellant’s co-accused, the debtors clerk, the lower court concluded that Liberty Kanyama was not a handwriting expert who is qualified to comment on the similarities of signatures. The lower court added that (on p 12 of the record) the evidence of a mere signature affixed to a document is not enough to conclude that the debtors’ clerk was in connivance with the appellant who did the actual reversal with his user name. The lower court concluded in respect of debtor’s clerk that the evidence of the State was speculative and it acquitted the appellant’s co-accused on that basis. With regards to the appellant the lower court concluded that the user name T. Mpofu was used to do all the fourteen fraudulent reversals. Appellant disowned the user name stating that he never used that user name and did not belong to him, his user name was Thabo Mpofu.

The lower court also remarked in conclusion that all the audit trail documents produced from the complainant company, none of those papers reflected “Thabo Mpofu” as the user name. The lower court believed the Finance Manager Mr Liberty Kanyama’s evidence that T. Mpofu was appellant’s user name. The signatures on the reduction of UME’s balance was identified as authentic by the lower court and the appellant was convicted on all 14 counts of fraud. The denial of both the user name T. Mpofu as well as the signature by the appellant were rejected by the court a quo. The owner of UME was also convicted by the lower court.

GROUNDS OF APPEAL AGAINST CONVICTION

The court a quo grossly misdirected itself both on facts and the law by convicting the appellant on count one despite that there was no expert handwriting evidence that the appellant signed the journal that was used to reverse a genuine transaction and to credit Ukuzenzele’s account and debtors confirmation letter.

The court a quo grossly misdirected itself both on facts and the law when it convicted the appellant on counts 2 to 14 despite that the journal allegedly used in reversing genuine transactions and crediting Ukuzenzele’s account were missing and there was no handwriting expert evidence proving that appellant signed the debtors’ confirmation letters and the missing journals.

The court a quo grossly misdirected itself both on facts and the law when it made a finding that the user name that was used to reverse genuine transactions and credit Ukuzenzele’s account belongs to the accused despite that there was no evidence adduced by an IT specialist to that effect.

The court a quo grossly misdirected itself on the facts and on the law when it made a determination that the user name used in reversing genuine transactions and fraudulently crediting Ukuzenzele’s account was for the appellant despite that there was no sufficient evidence that the said user name had been issued to the appellant.

The appeal is opposed.

SUBMISSIONS BEFORE THE COURT

Mr C. Chibaya who appeared for the appellant submitted that the court a quo erred in convicting the appellant in the absence of expert handwriting evidence to prove that the signature that signed the journal that was used to reverse a genuine transaction and to credit Ukuzenzele’s account and debtors’ confirmation letter was that of the appellant. It was the contention of the appellant’s counsel that under cross-examination Mr Liberty Kanyama conceded that he was not an expert on handwriting and as such he could not be in a better position to testify on the signatures on the journal. Mr Kanyama further made a concession under questioning by the defence that the signatures on the journals were not scrutinised by an expert, including the signatures on debtor’s confirmation letters in respect of the appellant’s signatures. Whereas the lower court correctly made a finding that Mr Liberty Kanyama was not qualified as a handwriting expert and could not have adduced evidence as to who signed the journal in relation to count 1 where the court acquitted the debtor’s clerk. Once the evidence of Liberty Kanyama was discredited, it was submitted by the appellant, there was no basis for the court a quo to convict the appellant on the first count. The appellant added that there was no evidence adduced by the State from a handwriting expert that the debtor’s clerk signed the journal in count 1 and that the appellant signed the debtors’ confirmation letter in count 1.

The appellant moved this court to acquit him on count 1.

The appellant’s counsel also impugned the conviction of the appellant on counts 2 to 14 in light of the missing journals allegedly used in reversing genuine transactions and crediting Ukuzenzele’s account. Those documents produced by the State did not assist the State, it was submitted, because the signatures attributed to the appellant were not proved to be his by an expert to prove as to who precisely signed the debtors’ confirmation letters. There was no audit trail established and produced by the State, only one journal was produced for count 1 and all the other 14 counts’ journals were not produced. The missing journals as well as lack of expert handwriting evidence, appellant contended, greatly negatively destroyed the strength of the State case against the appellant. The appellant cited the case of Julias Sisar Mupatsi v The State where it was reiterated by this court that no onus rests on an accused to convince the court of the truth of any explanation which he gives.

It was further submitted by the appellant that appellant denied the signatures on the debtors’ confirmation letters and once the State was faced with this defence it was duty bound to call a handwriting expert.

The appellant submitted further that the lower court ought not to have made a ruling or finding that the user name used to reverse genuine transactions and credit Ukuzenzele’s account belongs to the appellant. This is so when there was no evidence adduced from an information technology specialist to that effect. The lower court was satisfied by the State’s evidence that T. Mpofu alluded to the appellant and no one else, it was submitted, and by so doing, appellant submitted the court a quo misdirected itself on both facts and the law. Mr Liberty Kanyama was not from IT department of complainant, it was averred by the appellant. The appellant submitted further that the conviction of the appellant was not proper in the absence of this further expert evidence on technology. Fungai Makombe did not work for complainant’s company’s IT department, and it remains clear that the user name T. Mpofu’s origin was not proved by the State. The lower court, it was submitted, should not have believed Liberty Kanyama the Finance Manager’s mere say so that the user name T. Mpofu belongs to the appellant. The appellant further averred that he has no onus to prove that his user name was not T. Mpofu. It was the complainant’s IT department which was responsible with the issuance of user names and passwords and the lack of evidence from IT department places the State case into jeopardy, it was submitted by the appellant. The same argument is attributed to the reversal of genuine transactions.

The appellant contended that the user name T. Mpofu was not proved in the lower court to have been allocated to him. The witness called by the State Liberty Kanyama was not an IT expert and was not qualified to state that T. Mpofu user name related to the appellant. It was added by the appellant that there was no evidence adduced by the State that T. Mpofu user name was issued to the appellant by the IT department of complainant company.

The State represented by Mrs J Matsikidze submitted that the lower court did not misdirect itself in any way whether on facts nor law in convicting the appellant. The State submitted further that the user name T. Mpofu was not proved to belong to any other employee other than the appellant. The State further submitted that Liberty Kanyama testified that T. Mpofu was the appellant’s user name, and in such a situation there was no need for additional evidence from the IT department since it was common knowledge at the company. As a result it was the State’s view that it was the appellant who effected the reversals for the benefit of Ukuzenzele’s director.

It was also the contention of the respondent that the appellant does not say that the irregularities that happened affected various individuals but benefited a single account holder who made no payments but acknowledged reduction of indebtedness.

The State also averred that the lower court was satisfied that it was not only improbable but patently false that complainant’s system was malfunctioned in a manner that prejudiced some account holders and benefitted only Ukuzenzele.

On the aspect of the signature and the calling of an expert in handwriting the State counsel submitted that the evidence of Liberty Kanyama was adequate. She cited the matter of Manolakakis v Estate Manolakakis and Others (HB 88/13), as such, it was contended, there was no need for the State to call a handwriting expert. Since Liberty Kanyama was familiar to the appellant’s signature. The respondent added that in light of the familiarity of the appellant’s signature to Liberty Kanyama, there was no anomaly nor misdirection done by the lower court to dispense with the calling of the expert on handwriting. The State prayed that the appeal be dismissed since the proceedings a quo were in accordance with the real and substantial justice.

ISSUES FOR DETERMINATION

Although there are four grounds of appeal before this court, all four can be summarised to read whether there was enough evidence placed before the court a quo to convict the appellant? Whether the evidence of Mr Liberty Kanyama alone was enough to be relied upon by the lower court in the absence of the journals and evidence of a handwriting expert to authenticate the signatures of the appellant and prove a proper link between or among departments of the complainant?

THE LAW

Generally speaking, fraud consists in knowingly making a false representation of fact with the intention to defraud the party to whom it is made, and to such false representation actually causes prejudice or it is potentially prejudicial to another.

“The causative link between any misrepresentation and the actual or potential result is to my mind an important element of the offence and a vital aspect of the enquiry in this case. In this regard I respectfully agree with the observation by Hunt in South Africa Criminal Law and Procedure. Volume 11, that this causative element is implicit in the concept of potential prejudice. At p 728 the learned author says:

‘it is often stated that there must be a causal link between the misrepresentation and the actual or potential prejudice. The word “potential” however incorporates in itself a test of causation. “Potentiality” is a way of referring to causation. It is therefore logically relevant to say that the misrepresentation must cause the potential prejudice. If the misrepresentation is potentially prejudicial the law is causation requirements will have been satisfied.”

Hence where an accused makes a false representation in order to induce the representee to part with his property and he obtains the property, if the false representation is of such a nature as, in the ordinary course of things, to be likely to prejudice the complainant, the accused cannot successfully contend that the crime of fraud is not established because the State law failed to prove that the false representation induced the complainant to part with the property. The prejudice suffered by the representee must be the result of the false representation.

The law on expert evidence has long been emphasized in the matter of R v Nyamayaro

In Annama 1964 AD 142 Greenberg ja stated:

“It is clear that expert evidence admissible… and once it is admissible the question in each case is … Whether its cogency either alone or with other evidence is sufficient to carry convictions though numerous warnings are to be found in cases as to the earth with which evidence of this kind is to be approached.

In R v Theunissen 1948 (4) SA 43, at 46 DE Villiers AJP stated:

‘In my opinion, and that is borne out by authority, he could have deposed to the facts which he had found and upon which he relied as the foundation for the opinion but an opinion unaccompanied by the foundation upon which it is based is again of no value to the judicial officer who has to make a finding on it”

In the case of S v William En Andere it was held that:

“In the reported decisions of the courts where it was required that reasons for the inferences drawn by expert witnesses should be given, this requirement was not relevant to the admissibility of the evidence, but rather to the weight which should be accorded to the evidence. Where an expert witness who possesses special knowledge, skill and experience, carries out a test requiring the application of such knowledge, skill and experience, and thereafter draws an inference are not mentioned by him.  If the prima facie proof is not contested the court is entitled to rely thereon. All that is required is that the court should be satisfied that the expert witness possesses the necessary qualification and competence to carry out the test and to interpret the results thereof.”

Expert witness testimony on an ultimate issue will more readily tend to be relevant when the subject is one which the court is usually quite incapable of forming an unassisted conclusion. Expert testimony must be as influential in the overall decision-making process as it deserves. The weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Hence expert evidence is important evidence more so where an accused is challenging the signature.

It is also important to deal with the law on circumstantial evidence where the court has to look at the totality of the evidence placed before it to reach a decision. In S v Reddy and Others it was held that in assessing circumstantial evidence, one needs to be careful not to approach it upon a piecemeal basis and subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom where reference is made to two cardinal rules of logic: (1) that the inference sought to be drawn must be consistent with all the proved facts. (2) that the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.

The fact that a number of inferences can be drawn from a certain fact taken in isolation, does not mean that in every cause, the State, in order to discharge the onus which rests upon it, is obliged to indulge in conjecture, and find an answer to every possible inference that ingenuity may suggest any more than the court is called on to seek speculative explanations for conduct which on the face of it is incriminating.

APPLICATION OF THE LAW AND FACTS.

First ground of Appeal

Whether the court a quo, misdirected itself on facts and the law by convicting appellant on count 1 despite the fact that there was no expert handwriting evidence to show that appellant signed the journal that was used to reverse a transaction to credit Ukuzenzele’s account and debtors confirmation letter?

The court a quo relied on the evidence of Liberty Kanyama to convict the appellant. The evidence of Liberty Kanyama was to the effect that he was familiar with appellant’s regular signature because Liberty Kanyama had worked with the appellant for a considerable period.

The appellant on the other hand in his defence had disputed the signature and had put the State to proof specifically to prove that the signatory was the appellant’s.

The learned trial Magistrate accepted the evidence of the State witness and convicted the appellant. Incidentally the evidence of the same witness was regarded as insufficient when the court a quo assessed it in relation to appellant’s co-accused facing the same count 1. It is difficult for this court to fathom how a discredited witness’ evidence by a court can suddenly become credible about the same count. Once a court finds a witness’ evidence incredible against an accused and acquit such an accused, cogent reasons ought to be advanced by the trial court on its change of attitude. This is aptly so where there are jointly tried accused persons. The court a quo had concluded that Liberty Kanyama was not an expert and that his evidence against the debtor’s clerk was inadequate, it then detoured into the unknown path in concluding that the same witness’ evidence was validly credible against the appellant that was a gross misdirection.

The appellant once he challenged the signature on the journal had put that aspect into dispute. The onus was on the State to prove otherwise. The form of evidence to disprove the appellant’s defence was not the evidence of a discredited witness, but one of a handwriting expert. The expert evidence would have among other things proved any reasonable doubt that the signature on the journal was none other than that of the appellant. That evidence would have been sufficient, the court a quo would have then be at peace to use that evidence in conjunction with the oral evidence of Mr Liberty Kanyanga whose familiarisation with the appellant’s signature would have added more probative value to the totality of the evidence before the court.

I am convinced that the first ground of appeal by the appellant is meritorious and it is upheld.

Second ground of Appeal.

Whether the court a quo grossly misdirected itself both on facts and the law when it convicted appellant on count 2 to 14 despite that the journals allegedly used were missing and that there was no handwriting expert’s evidence to prove that appellant signed the debtors confirmation letters and the journals?

In order to convict the appellant on counts 2 to 14 the State was required to produce (a) the journals (b) the debtors confirmation and (c) a signed document authored by the appellant. An accurate paper trail outlining all these three essential requirements would have been produced by the State to prove that.

the appellant intentionally made a false representation of fact to defraud a particular agent or employee of complainant and that such a false representation actually caused prejudice or potentially prejudiced the complainant.

that the false statement was made with intent or that there was a real risk or possibility of deceiving complainant or that the misrepresentation may be relied upon by the complaint to its prejudice

the causative link between any misrepresentation and the actual or potential prejudice is an important element of the offence and a vital aspect of the enquiry by the triar of facts.

the causative element is implicit in the concept of potential prejudice.

The central point or quintessence of count 2 to 14 in this appeal is the journal.  The journal is delta of the charges, the debtor’s confirmation is a tributary that flows from that fountain. The liability of the appellant must be premised on these documents which must be proved by the state beyond any reasonable doubt that appellant is guilty. The journals are absent from the paper trail, they are not part of the record of proceedings at all. It is not clear as to who created these journals and their probative value to the State case has not been proved. What was produced by the State is or were the debtor’s confirmations whose signatory on the debtor’s confirmation was not scientifically proved to be that of the appellant. The signature could have created a suspicion that it could have been that of appellant but that suspicion could have been removed only if a handwriting expert could have been called. The testimony of Liberty Kanyama cannot pass the standard of being reasonable in order for a court to say with conviction that the only reasonable inference from the proved facts was one of guilt. Someone else other than appellant could have created the journals, someone else who imitated appellant’s usually known signature could have possibly signed the debtors confirmation.

These possibilities invariably qualify to be reasonable doubts to the State case and where such patently exist, they ought to benefit the appellant. The convictions of appellant on counts 2 to 14 are not supported by documentary evidence and the ground of appeal has merit and it is upheld.

The third ground of appeal is that the court a quo misdirected itself both on facts and law when it made a finding that the username that was used to reverse genuine transactions and credit Ukuzenzele’s account belongs to the appellant despite that there was no evidence adduced by IT specialist to that effect.

The court a quo in its judgment admits that no specialist from the Information Technology Department of the complainant was called to testify. However the lower court concluded that the State managed to prove that no one else in complainant’s company used the username T Mpofu, other than the appellant. That conclusion is unfortunately not supported by fact established by the state’s evidence. It could have been a sound conclusion had an expert from the Information Technology Department of the complainant had led such evidence and shown that, the person registered in their equipment, legally authorised to use the username of T. Mpofu was none other than the appellant and that, evidence supported by hard copies or authorities to authenticate that, the triar of facts would have logically reached at such a conclusion. The court wonders why the State was in a hurry to dispense with the trial leaving such salient evidence not covered herein all these lacunae would have sealed all the doubts in the State case. More so where it is not established by the state as to what appellant stood to benefit out of the transactions. What remains problematic in the State case was and still remains evidence of experts, in the absence of expert evidence led by the State, the case against the appellant suffered a still birth. The third ground of appeal is equally meritorious and it is upheld.

The same conclusion relating to the user name can safely be reached relating to the last and fourth ground of appeal. Someone else other than the appellant could have used the username T. Mpofu in reversing genuine transactions and fraudulently credited Ukuzenzele’s account. The evidence led by the State tittered on edges and left a lot of questions unexplored. These unchatted problems created doubt on the part of the State and such doubt must be in the appellant’s favour. The fourth ground of appeal has merit and it is upheld.

DISPOSITION.

It is ordered that:

The appeal against conviction be and is hereby allowed.

The appellant’s conviction on all counts be and is hereby set aside and substituted with the following

“Accused is found not guilty and acquitted on all counts.”

MWAYERA J agrees__________________________

Messrs Chibaya and Partners, Appellant’s Legal Practitioners

National Prosecuting Authority, for the State