Tendayi Washington Nyamajiwa v The State

The appellant operated an unregistered car dealership and was contracted by the Urban Development Corporation (the complainant) to supply Toyota Corolla motor vehicles. The complainant's board recommended purchasing the vehicles from the appellant without going to tender, as one board member was well known to the appellant. After a sample vehicle passed AA tests, the appellant was paid the full amount via RTGS direct deposit into his bank account on 19 October 2012. The appellant withdrew the full amount in cash the next day but lost the money to thieves before he could travel to South Africa to buy and import the vehicles. He reported the theft to police and notified the complainant of this development immediately, maintaining this position throughout. The appellant was convicted of fraud under s 136 of the Criminal Law (Codification and Reform) Act and sentenced to eight years' imprisonment, with three years suspended on conditions of good behaviour.

• Whether the trial magistrate erred in finding the complainant a credible witness when evidence was largely hearsay
• Whether the State proved beyond reasonable doubt that the appellant made a misrepresentation with intent to defraud
• Whether the appellant's explanation regarding the loss of money to thieves was reasonably possibly true
• Whether the essential elements of fraud under s 136 of the Criminal Law (Codification and Reform) Act were satisfied

Appeal allowed. The conviction was set aside and the verdict altered to "Not guilty and acquitted."

For a conviction of fraud under s 136 of the Criminal Law (Codification and Reform) Act, the State must prove beyond reasonable doubt that the accused made a misrepresentation with an intent to deceive. Where an accused provides a reasonably possibly true explanation for their conduct (such as reporting theft to police), and there is no evidence that they made false representations to secure a contract, the element of misrepresentation with intent to defraud is not established. Where doubt exists regarding whether an accused intended to deceive, that doubt must be resolved in favour of the accused.

The Court observed that the absence of proper records of the transaction in the complainant's files (a large corporate entity) regarding capital outlay before delivery of goods was "not without reason" and suggested that someone in the Chairman's office may have been trying to give business to an acquaintance, but it went wrong. The Court noted that if the complainant had genuinely believed they were scammed, they would not have entered into negotiations with the appellant regarding refund of the money. The Court commented that a person internally and informally identified to supply goods could not be said to have made a misrepresentation with intent to deceive in such circumstances.

This case is significant in Zimbabwean criminal law for clarifying the burden of proof required for fraud convictions, particularly the need to establish both misrepresentation and intent to deceive beyond reasonable doubt. It demonstrates that where an accused provides a reasonably possibly true explanation for failure to perform contractual obligations (such as theft of funds), and there is no clear evidence of misrepresentation, the benefit of the doubt must be given to the accused. The case also highlights the importance of proper record-keeping in commercial transactions and illustrates how informal business arrangements and the conduct of parties after an alleged fraud can be relevant to determining criminal intent.