Brian Tarisai Kambasha and Hemingworth Cartwright (Pvt) Ltd v The State

The appellants entered into a written agreement with the complainant to erect a 100KVA solar plant at the complainant's farm. In pursuance of the first phase of the agreement, the complainant advanced US$50,125.00 to the appellants. The appellants cleared the ground and erected metal poles but failed to complete installation of the solar panels. The appellants claimed they had completed 80% of the project but the funds were exhausted due to failure to obtain a promised 60% discount from suppliers. The complainant estimated only US$3,000.00 worth of work had been completed. The appellants stopped work and wrote to the complainant on 7 August 2014 requesting extension until November 2014, promising to reimburse the full US$50,000.00 plus 5% within 48 hours if work was not completed. The complainant reported the appellants to the police, alleging conversion of funds. The appellants were convicted of theft of trust property under s 113(2)(d) of the Criminal (Codification and Reform) Act. The first appellant was sentenced to 5 years imprisonment (effective 3 years after suspensions). The second appellant was fined US$1,000.00.

• Whether the relationship between the appellants and complainant was one of debtor/creditor rather than a trust relationship
• Whether the essential elements of the offence of theft of trust property were established
• Whether money advanced under a contractual agreement for services constitutes 'trust property' under s 113(2)(d) of the Criminal (Codification and Reform) Act
• Whether a civil claim for breach of contract was the appropriate remedy rather than criminal prosecution
• Whether the State established a prima facie case warranting placing the appellants on their defence

The convictions against both appellants were quashed and the sentences were set aside. Both appellants were found not guilty and were acquitted.

Money advanced under a contractual agreement for services creates a debtor/creditor relationship, not a trust property relationship within the meaning of s 113(2)(d) of the Criminal (Codification and Reform) Act. Where parties have a contractual relationship for services, the complainant should exhaust civil remedies for breach of contract (specific performance, cancellation and damages) rather than resort to criminal prosecution for theft of trust property. An offer to reimburse does not automatically constitute a defence to theft of trust property, but where the evidence demonstrates genuine intention to perform contractual obligations and the accused lacked intention ab initio to misappropriate funds, the essential elements of theft of trust property are not established. The facts of such cases fall within the exceptions expressly provided in s 112 of the Criminal (Codification and Reform) Act.

The court made observations regarding the principles of trust property in criminal law, noting it derives from Roman-Dutch law and the Transkeian Penal Code (s 183 of the Native Territories (Transkeian) Penal Code Act No. 24 of 1886). The court emphasized that 'trust property' in criminal law does not require a fiduciary relationship in strictu sensu - limiting it this way would inappropriately exempt individuals from prosecution. Trust property merely denotes responsibility to use money for intended purposes. The court cited Professor Snyman's proposition that conversion of trust money is not theft if throughout, the accused has liquid funds available for reimbursement. However, courts must exercise caution and determine whether there is genuine desire to reimburse, as an offer to reimburse alone does not constitute a full defence. While the trial court's comments comparing the first appellant to 'notorious fraudster Ronald Mavhunga' and characterizing him as 'a cunning malcontent' were 'unacceptably injudicious', this did not demonstrate actual bias.

This case is significant in Zimbabwean criminal law for clarifying the boundaries between criminal prosecution for theft of trust property and civil remedies for breach of contract. It establishes that money advanced under contractual agreements for services creates a debtor/creditor relationship, not a trust property relationship, and such disputes should be resolved through civil courts (specific performance or damages) rather than criminal prosecution. The judgment provides important guidance on when the offence of theft of trust property under s 113(2)(d) of the Criminal (Codification and Reform) Act is properly engaged, emphasizing that the existence of a contractual relationship with ongoing obligations and genuine offers of reimbursement may negative the intention required for theft of trust property.