The appellant was charged with fraud under section 36 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and alternatively with theft of trust property under section 113(2)(d) of the same Act. The case arose from a business transaction involving the appellant and the complainant. Evidence indicated that either the two parties embarked on a joint business venture or that the appellant was the principal to the transaction who sought financial assistance from the complainant. The trial court acquitted the appellant on the main count (fraud) but convicted him on the alternative count (theft of trust property). At the time of arrest, the appellant had already started making payments to the complainant. The complainant himself had not ascertained what amount was actually due to him, stating that he and the appellant needed to sit down and work out what was owed to each party.
The appeal was allowed. The trial court's conviction and sentence were set aside and replaced with a verdict of not guilty. The appellant was acquitted.
Where the prosecution fails to impeach contradictory state witnesses and instead leaves the trial court to pick and choose which evidence to prefer, this constitutes a gross irregularity because the onus is on the State to prove its case beyond reasonable doubt. Where two reasonable possibilities exist on the evidence, and the trial court rejects the accused's corroborated version without cogent reasons, the conviction cannot stand. In theft cases, the element of permanent deprivation must be clearly established, and where the complainant himself has not ascertained what is due to him, the conviction for theft of trust property is not sustainable. Criminal prosecution is inappropriate for resolving what are essentially civil commercial disputes between parties to a business transaction.
The court observed that the complainant "ill advisedly decided to enlist the services of the police to deal with purely civil dispute." The court also questioned how restitution could be properly arrived at when even the complainant had not determined what was actually owed, stating that the complainant "kept on saying he and the appellant were supposed to sit down and work out what was due to each other." These observations suggest judicial concern about the misuse of criminal processes for civil matters and the importance of certainty in quantum before criminal liability can be established.
This case is significant in Zimbabwean criminal law for establishing important principles regarding: (1) The prosecution's duty to impeach contradictory state witnesses rather than leaving the court to pick and choose evidence; (2) The need for cogent reasons when rejecting a defendant's version that is corroborated by witnesses; (3) The application of the principle that where two reasonable possibilities exist, the one favouring the accused should be accepted; (4) The inappropriateness of using criminal prosecution to resolve what are essentially civil disputes; (5) The requirement that the element of permanent deprivation must be clearly established in theft cases; (6) The need for certainty regarding the amount allegedly misappropriated before conviction and restitution orders can be made.