The appellant, an officer of the National Education Workers' Union of Zimbabwe (an affiliate of Zimbabwe Federation of Trade Unions), represented the complainant Jephat Makumbinde in a claim against the National Housing Development Trust. The complainant won his claim in the sum of $47,000. When the judgment was executed through garnishee proceedings, $27,940 was deposited into the appellant's personal bank account rather than the complainant's account. The appellant claimed there was a 35% contingency fee agreement with the Zimbabwe Federation of Trade Unions since the complainant was not a union member. The complainant disputed this, claiming they had agreed on only a 5% token of appreciation. After various disbursements were made per the complainant's instructions, $7,290 remained outstanding and unaccounted for. The complainant disputed authorizing the deposit of funds into the appellant's account and disputed the signature on a letter dated 8 December 2016 allegedly giving such instructions. The appellant was originally charged with forgery and fraud but convicted of theft.
The appeal against both conviction and sentence was dismissed. The conviction for theft in contravention of s 113(1) of the Criminal Law (Codification and Reform) Act was upheld. The sentence of a fine of $600 or 3 months' imprisonment in default, plus 8 months wholly suspended on condition of restituting $7,290 by 15 April 2018, was confirmed.
Where an accused receives money belonging to another person into his personal account without proper authorization from that person, and fails to account for a portion of those funds, such conduct constitutes theft under s 113(1) of the Criminal Law (Codification and Reform) Act, provided the accused was aware the money belonged to the complainant. The funds do not constitute trust property under s 112 where the complainant disputed authorizing the accused to receive the money on his behalf. A contingency fee agreement, particularly one of significant value, must be properly evidenced and cannot be accepted on bare assertion without documentary proof or proper accounting. The burden remains on the state to prove the absence of lawful entitlement to withheld funds, but this burden can be discharged through evidence from investigating officers and the absence of supporting documentation from the defence.
The court observed that it would be inconceivable for a contingency fee agreement of this nature to be merely verbal rather than in writing. The court also noted, in passing, that an inference may be drawn from an accused's refusal to submit a specimen of handwriting for expert analysis, though the court did not rely solely on this point. The court commented that if the purpose of depositing funds into the appellant's account was to secure a contingency fee for Zimbabwe Federation of Trade Unions, it would be doubtful that the organization would have agreed to disburse payments on behalf of the complainant without first securing their 35% contingency fee. The court also observed that the conviction was not marred by the trial court's omission to specify the particular provision under s 113 of the Criminal Law (Codification and Reform) Act under which it convicted the appellant.
This case is significant in Zimbabwean criminal law as it clarifies the distinction between trust property under s 112 and theft under s 113(1) of the Criminal Law (Codification and Reform) Act. It establishes that where an accused receives funds without proper authorization from the owner, even if there is a professional relationship between the parties, the failure to account for those funds and their withholding constitutes theft rather than breach of trust. The case also demonstrates the importance of documentary evidence in establishing contingency fee agreements and proper accounting for client funds, particularly relevant to legal practitioners and union representatives acting in a quasi-legal capacity. It reinforces that inference may be drawn from an accused's refusal to cooperate with investigations (such as refusing to provide handwriting specimens).