The State v Proud Rubaya

On 16 January 2025, the accused sold a house (stand number 15881 Simon Mawarire Street Runyararo West, Masvingo) to the complainant Kudzai Takawira for US$15,600. The complainant paid a deposit of US$10,000. The house belonged to the accused's late mother, Emelly Rubaya, who had passed away in 2023. After consulting her lawyer, the complainant discovered the paperwork was not properly done and demanded her money back. She received US$6,500 after 2 weeks. Police investigations revealed that the accused had registered the deceased estate with the Master of the High Court on 16 January 2025 (DRMS 18/25) and sold the house on the same date. The accused was charged with fraud under s136 of the Criminal Law (Codification and Reform) Act. He pleaded guilty at the magistrate's court, was convicted and sentenced to 18 months' imprisonment with 6 months conditionally suspended. The matter came before the High Court on automatic review.

• Whether the magistrate properly canvassed the essential elements of fraud, specifically the making of a misrepresentation and the intention to deceive, during questioning under s271(2)(b) of the Criminal Procedure and Evidence Act
• Whether the accused's plea of guilty was equivocal given his answer that he was 'not aware' of the unlawfulness of his conduct
• Whether the conviction could be confirmed as being in accordance with real and substantial justice

The conviction was quashed and the sentence set aside. The matter was remitted to the magistrate's court for a trial de novo before a different magistrate. The court directed that in the event of a conviction, the sentence imposed shall not be more severe than the one originally imposed.

For a conviction of fraud under s136 of the Criminal Law (Codification and Reform) Act to be sustained on a guilty plea, the court must canvass with the accused the essential elements of: (1) making a misrepresentation to another person, and (2) the intention to deceive or realization of a real risk of deceiving that person. Merely selling property that does not belong to the accused does not ipso facto constitute making a misrepresentation - the accused must admit as a matter of fact that he misrepresented ownership to the victim. The intention to deceive presupposes knowledge of the unlawfulness of one's conduct and relates to the accused's state of mind when making the misrepresentation. Failure to properly canvass these essential elements during s271(2)(b) questioning renders the proceedings not in accordance with real and substantial justice.

The court observed that a misrepresentation is a perversion or distortion of the truth - an accused makes a misrepresentation when he represents to another that a fact (or set of facts) exists which in reality does not exist (citing S v Nyuke 1981 ZLR 158 (G) and S v Sithole 1997 (1) 225 (H)). The court also noted that the essence of fraud is deceiving or misleading the victim through an incorrect statement of fact or law. The court commented that while the query did not suggest the accused did not commit fraud or break any law, it addressed the procedural failure in properly establishing the elements through proper questioning.

This case is significant for establishing proper procedures in criminal proceedings involving guilty pleas to fraud charges. It clarifies the essential elements that must be canvassed when an accused pleads guilty to fraud, emphasizing that courts cannot skip over fundamental elements like misrepresentation and intention to deceive. The judgment serves as important guidance for magistrates on how to properly question an accused under s271(2)(b) of the Criminal Procedure and Evidence Act when dealing with fraud charges. It reinforces that procedural shortcuts in canvassing essential elements, even where guilt may seem apparent, undermine the administration of justice and cannot be confirmed on review.