CFX Bank Limited v RTO Engineering (Private) Limited and Messenger of Court

On 6 March 2008, RTO Engineering (Pvt) Limited supplied CFX Bank with ZWD $16.1 trillion to be transferred into beneficiaries' accounts for purchasing mechanized farm equipment. CFX Bank misrepresented that it had transferred the full amount by originating 'swift transfers' when in fact only a portion ($100,000.00 to Tatumarchesan in Brazil) had been transferred. This caused actual prejudice of USD $250,000.00 to RTO Engineering. On 14 December 2009, the Regional Court convicted CFX Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act, fined it $500.00, and ordered compensation of $250,000.00 to RTO Engineering. CFX Bank immediately noted an appeal. On 17 December 2009, the Messenger of Court, armed with a Writ of Execution, attempted to attach property to satisfy the restitution order. CFX Bank filed an ex parte application for stay of execution in the Magistrate's Court on 18 December 2009, which was dismissed. CFX Bank then simultaneously filed an application for review and this urgent application for stay of execution pending review.

• Whether the noting of an appeal suspends the execution of an order of restitution/compensation made in criminal proceedings
• Whether section 63 of the Magistrates Court Act, which provides that appeals do not suspend sentences of imprisonment, fines or community service, applies to orders of compensation
• Whether the Writ of Execution was properly issued despite the pending appeal
• Whether the Regional Magistrate had jurisdiction to order compensation in the amount of USD $250,000.00
• Whether the application for review had reasonable prospects of success to warrant a stay of execution

The application for stay of execution pending review was dismissed with costs.

The noting of an appeal does not suspend the execution of an order of compensation/restitution made in criminal proceedings. Section 370 of the Criminal Procedure and Evidence Act, which allows courts to require security from the injured party for repayment if the award is reversed, presupposes that compensation is payable immediately upon sentence and is not suspended by appeal or review. Regional Magistrates have jurisdiction under section 367 of the Criminal Procedure and Evidence Act to award compensation in any amount, notwithstanding enactments limiting their civil jurisdiction. A stay of execution pending review will only be granted where the applicant demonstrates reasonable prospects of success in the review application.

The court observed that the clerk of court and messenger of court did not exercise any judicial functions that would be reviewable under section 372 of the Criminal Procedure and Evidence Act. The court also noted that no record of proceedings was furnished to support the review application, and no recognized basis was laid for the review. The court commented that the expressio unius est exclusio alterius principle of interpretation (express mention of certain matters excludes what is not stated) was argued by the applicant regarding section 63's omission of compensation orders, but the court preferred to interpret the legislative scheme holistically by reference to section 370.

This case is significant in Zimbabwean criminal procedure law as it clarifies that orders of compensation/restitution made in criminal proceedings are not suspended by the noting of an appeal, unlike fines which may be suspended upon granting of bail. The judgment emphasizes the immediate enforceability of compensation orders and interprets section 370 of the Criminal Procedure and Evidence Act as supporting immediate payment. It also confirms the broad jurisdictional powers of Regional Magistrates to order compensation in any amount under section 367, notwithstanding civil jurisdiction limits. The case provides guidance on when stay of execution pending review will be granted - only where there are reasonable prospects of success on review.