Forit Contracting (Pvt) Limited represented by Blessing Tapfumaneyi and Richard Nhokwara v The State

There was a motor vehicle accident involving vehicles belonging to the complainant and the first appellant. After the accident, the first appellant made a claim for damages. Old Mutual Insurance, the complainant's insurers, paid US$2,000.00 out of the total claimed amount. The first appellant then demanded the balance of US$7,270.00 from the complainant. The State alleged that the appellants committed fraud by misrepresenting to the complainant that he had paid an admission of guilt fine, and exhibited a Z69J Form (admission of guilt form) bearing a signature attributed to the complainant. The complainant paid the balance amount but later claimed he became aware (after watching a television programme) that he should not have paid the money since his insurance had already made payment.

• Whether the appellants made a misrepresentation to the complainant
• Whether the essential elements of the offence of fraud under s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] were proved
• Whether the appellants were aware that the admission of guilt form was not signed by the complainant
• Whether the complainant suffered actual prejudice linked to the alleged misrepresentation

The appeal against conviction succeeded. The judgment of the Magistrates' Court was set aside and substituted with an order that the accused are found not guilty and acquitted.

For a conviction of fraud under s 136 of the Criminal Law (Codification and Reform) Act to be sustained: (1) the State must prove that the accused made a misrepresentation with the intention to deceive or realizing the real risk of deceiving another, and (2) the State must prove actual prejudice directly linked to that misrepresentation. Where the trial court finds that it has not been proved who signed a disputed document which forms the basis of the alleged misrepresentation, the accused should be acquitted. The accused must be proven to have been aware that a document was disputed or fraudulent; mere awareness of its existence is insufficient. A complainant's voluntary payment where they had the election to challenge the amount claimed does not constitute prejudice linked to an alleged misrepresentation, particularly where the document relied upon (such as an admission of guilt form) does not prove quantum of damages.

The court observed that it was the conduct of the complainant in not just admitting liability based on the Z69J Form but also going further to make payment which may have misled the appellants rather than the other way around. The court noted that although the State's outline suggested the first appellant connived with one Wallacy Muroyiwa to produce the disputed Z69J Form, this was not proved at trial.

This case is significant in Zimbabwean criminal law as it clarifies the essential elements required to prove the offence of fraud under s 136 of the Criminal Law (Codification and Reform) Act. It emphasizes that mere awareness of the existence of a disputed document does not prove that an accused was aware it was being disputed. The case also reinforces that actual prejudice must be directly linked to the alleged misrepresentation, and that a complainant's voluntary payment cannot constitute prejudice where they had the option to challenge the claim. It demonstrates the strict burden of proof required in criminal fraud cases.