John Gazi v The State

The appellant (54 years old) was charged with fraud arising from events on 4 July 2002. The complainant, Margret Zimbowora, and her late husband Philemon Zimbowora were joint registered co-owners of a flat at number 8 Napier House, Bulawayo. They tasked one Kaseke to find a tenant for the flat, who found the appellant. In 2002, Philemon died and the complainant informed the appellant, instructing him to continue depositing rent into the same account. The appellant agreed but failed to deposit any money for five years, giving endless excuses. When the complainant instituted eviction proceedings, the appellant claimed for the first time that he had bought the flat from the late husband through a verbal agreement and that the complainant had granted her husband power of attorney to sell the jointly owned property. The appellant had been in occupation for 8 years, placed tenants in the property and collected rentals, but never registered the property in his name, while the complainant continued paying rates. The appellant never produced any documentation, receipt, power of attorney, or laid claim against the deceased estate when it was advertised.

• Whether the matter was properly prosecuted as a criminal fraud case or should have been treated as a civil matter
• Whether the elements of the crime of fraud under section 136 of the Criminal Law (Codification and Reform) Act were established
• Whether a verbal agreement of sale existed
• Whether the sentence imposed was excessive

The appeal against both conviction and sentence was dismissed in its entirety. The conviction for fraud and the sentence imposed by the Regional Magistrate were confirmed. The sentence consisted of: (1) a fine of US$5,000 or 10 months imprisonment in default; (2) 4 years imprisonment of which 2 years was suspended for 5 years on condition of good behaviour; and (3) the remaining 2 years suspended on condition of paying US$4,620 compensation (arrear rentals) to the complainant through the Clerk of Court by 30 November 2010.

The binding legal principles established are: (1) Under section 136 of the Criminal Law (Codification and Reform) Act, fraud is committed when a person makes a misrepresentation intending to deceive another or realizing there is a real risk of doing so, and intending to cause prejudice or realizing there is a real risk of prejudice. (2) The crime of fraud is complete the moment a misrepresentation is made; it is not necessary that the false representation be acted upon by the party to whom it is made. (3) Fraud consists of knowingly making a false representation of fact with intention to defraud which causes actual or potential prejudice (following Attorney-General v Paweni Trade Corp). (4) A matter may properly be prosecuted as criminal fraud even where it arises from what might appear to be a civil dispute, where the elements of fraud are established. (5) Claims of verbal agreements for property purchases will be rejected as fraudulent where the alleged purchaser produces no documentary evidence, fails to register title over an extended period, and the property remains registered to and rated in the original owner's name.

The court made a pointed observation that by not ordering restitution for the entire period from 2002 to January 2009, only requiring restitution from February 2009 (when the US dollar became legal tender), the appellant 'must be thinking crime pays' and commented that 'that is undesirable.' This was a non-binding observation expressing the court's concern about the inadequacy of the restitution ordered relative to the full period of the fraud, though it did not affect the court's decision to uphold the sentence as not excessive.

This case demonstrates the application of fraud provisions under section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in Zimbabwe. It illustrates that disputes that may appear civil in nature can properly constitute criminal fraud where there is a knowing misrepresentation with intention to deceive that causes actual or potential prejudice. The case reinforces the principle from Attorney-General v Paweni Trade Corp that the crime of fraud is complete upon making the false representation and it is not necessary that the representation be acted upon. It also provides guidance on when claims of verbal agreements in property transactions will be rejected as fraudulent misrepresentations, particularly where the alleged purchaser produces no documentation and takes no steps to formalize ownership over an extended period.