The State v Esther Muchichwa and Ruth Muchichwa and Tobesa Matongo

Three accused persons were arrested and charged with contravening section 4(1) of the Exchange Control Regulations S.I 109/96 as read with section 5 of the Exchange Control Act. Police officers on patrol alleged they saw the first and second accused seated on chairs touting for customers saying "lets change money" while second accused held cash. Third accused arrived in a Honda Stream vehicle and spoke to the others. The three then proceeded to the vehicle and started counting money. Police pounced and first accused allegedly handed cash to her son who fled. Upon search, first accused was found with $59-00 in bond notes and 400 pula, second accused with $44-00 in bond notes, and third accused with $72 in bond notes and 20 pula. All three accused denied the allegations, stating they were involved in a legitimate blanket sale/purchase transaction and were simply exchanging money relating to that business deal.

• Whether the State proved beyond reasonable doubt that the accused persons were dealing in foreign currency in contravention of Exchange Control Regulations
• Whether counting or handing over money establishes illegal foreign currency dealing
• What constitutes sufficient proof of illegal currency exchange
• The appropriate standard for assessing an accused's version of events when it is reasonably possibly true

1) The conviction and sentence of accused one and two were set aside. 2) The order for forfeiture of the cash found in possession of the accused persons was set aside. 3) The learned magistrate was ordered to recall the accused persons and advise them of this order and ensure they are refunded the forfeited sums.

The binding legal principle is that in criminal prosecutions for illegal foreign currency dealing, the mere fact that accused persons are seen counting or handing over money does not, without more, establish that they were dealing in foreign currency. Where an accused's version of events (such as a legitimate business transaction) is reasonably possibly true, it must be accepted and the accused acquitted. The standard of proof beyond reasonable doubt requires actual evidence of illegal currency exchange, not mere inference from innocent acts. The absence of malice on the part of arresting officers is not a proper basis for preferring the State's version over a reasonably possibly true defence version.

The court made observations about the proper approach to evaluating evidence in criminal cases, emphasizing that justice demands that an accused's version succeeds where it is reasonably possibly true. The court noted that accused persons should not have their credible defences discarded "for no apparent reason for the simple reason that they are accused persons." This reflects broader principles of fairness and the presumption of innocence in criminal proceedings.

This case is significant in Zimbabwean criminal law as it reinforces the fundamental principle that the State must prove its case beyond reasonable doubt and that an accused's version of events must be accepted if it is reasonably possibly true. It establishes that mere possession of cash or being seen counting money, without additional evidence of illegal currency dealing, is insufficient to sustain a conviction under Exchange Control legislation. The case also highlights the importance of consistency in judicial reasoning - a magistrate cannot accept a defence as credible for one accused and then reject the same defence for co-accused without proper justification. It serves as a reminder that absence of malice on the part of law enforcement is not a valid basis for preferring the State's version over that of the accused.