Sarudzai Harry v The State

The appellant was convicted on two counts: Count 1 - theft of trust property in that on 30 August 2018 she received 187 packets of MAQ Surf valued at US$850 from the complainant to sell on her behalf, but unlawfully converted the proceeds to her own use after selling them to a buyer called Bigman. Count 2 - fraud in that on 30 January 2018 she misrepresented to the complainant that she had a relative named Tawanda Mujikijera who was looking for a partnership requiring US$10,000 contribution, when no such proposal existed, inducing the complainant to pay her US$10,000. The appellant and complainant were close business associates with a relationship based on trust. The complainant discovered payment for the MAQ Surf had been made to the appellant when she approached Bigman. Tawanda denied receiving any money, having knowledge of any joint venture, or being robbed in South Africa as the appellant claimed. The trial was finalized in November 2019, after the promulgation of SI 33/19 on 22 February 2019 which introduced RTGS dollars.

• Whether the trial magistrate erred in convicting the appellant of theft of trust property when there was allegedly no trust agreement proved
• Whether the trial magistrate erred in finding the complainant and state witnesses credible
• Whether an appellate court should interfere with a trial court's findings on credibility of witnesses
• Whether the trial magistrate erred in ordering restitution in US$10,000 instead of RTGS$10,000 in light of the Finance (No. 2) Act 2019
• Whether restitution ordered in criminal matters falls within the scope of section 22(1)(d) of the Finance Act No. 2 of 2019 relating to conversion of USD obligations to RTGS dollars
• Whether the rate of restitution should be at the interbank exchange rate or at parity (one to one)

a) The appeal against conviction was dismissed. b) The appeal against sentence in Count 2 was allowed. c) The trial magistrate's sentence in Count 2 was set aside and substituted with: "10 months imprisonment is suspended on condition that appellant restitutes complainant in the sum of RTGS 10,000 through the Clerk of Court on or before 28-2-2022."

1. An appellate court will not lightly interfere with a trial court's findings on the credibility of witnesses unless those findings defy reason and common sense (applying S v Mlambo 1994 (2) ZLR 410 (S)). 2. Section 22(1)(d) of the Finance Act No. 2 of 2019 applies to criminal matters, including restitution orders arising from criminal convictions. 3. Assets and liabilities (including restitution obligations) that were valued in United States dollars immediately before the effective date of SI 33/19 (22 February 2019) and do not fall within the exclusions in section 44C(2) of the Reserve Bank of Zimbabwe Act must be deemed to be valued in RTGS dollars at a rate of one to one with the United States dollar. 4. The origin of a liability (whether from a court order or otherwise) is not a criterion for exclusion from the application of section 22(1)(d) of the Finance Act No. 2 of 2019. What matters is that the liability's value was expressed in USD immediately before the effective date. 5. Restitution orders should disgorge convicts of ill-gotten gains and recompense complainants for losses suffered, and it is good sentencing practice in fraud, theft and kindred offences to impose such orders where there has been loss of property with a determined value.

The court noted approvingly the principle stated in S v Pemhiwa HH 717/18 that "it appears to be a good practice in sentencing for crimes of fraud, theft and kindred offences where there has been loss of property with a determined value to disgorge the convict of ill-gotten gain and recompense the complainant of the loss suffered by imposing an order of restitution or compensation as the circumstances determine." The court also observed that allowing appellant to pay RTGS instead of the actual USD defrauded would mean the appellant would have benefited, which would be contrary to the purpose of restitution to disgorge ill-gotten gains. However, the court ultimately held that the Finance Act required the conversion at parity as a matter of law, regardless of this policy concern.

This case is significant in Zimbabwean criminal law jurisprudence for establishing that the Finance Act No. 2 of 2019 (particularly section 22(1)(d)) applies to criminal matters, including restitution orders. It clarifies that criminal liabilities valued in USD before the effective date of SI 33/19 (22 February 2019) must be converted to RTGS dollars at parity (one to one), not at interbank exchange rates. The case confirms the principle that restitution orders in criminal cases are subject to the same monetary conversion rules as civil obligations. It also reinforces the standard of appellate review regarding credibility findings, that appellate courts will not interfere unless the trial court's findings defy reason and common sense. The case demonstrates the application of monetary policy changes to the criminal justice system and the importance of ensuring that restitution orders reflect the correct currency regime applicable at the time of sentencing.