The State v Romeo Tapiwa Mupamaonde and Alfred Makama and Batsirayi Nyamayaro and Anstand Investments (Pvt) Ltd

The fifth offender, Anstand Investments (Pvt) Ltd, a private company directed by the fourth offender, won a tender from Hurungwe Rural District Council to construct Chehoko Causeway bridge for US$17,990 and entered into a written contract. The second and third offenders were employed by Council as Engineer and Assistant Engineer respectively. Despite the fifth offender winning the tender, the second and third offenders, working in concert with the fourth and fifth offenders, gave the job to construct the bridge to a 79-year-old man, Kainos Mupiwa, who completed the construction with two assistants and free labour from the local community. The second and third offenders paid Mupiwa for the work from their own pockets. The offenders then knowingly and intentionally misrepresented to Council that the fifth offender had constructed the bridge, inducing Council to pay US$17,990 to the fifth offender. The funds were actually disbursed by the Zimbabwe National Road Administration (Zinara) through Council. The first accused, Luke Kalavina, was acquitted.

• Whether the offenders committed fraud as defined in section 136(a) and (b) of the Criminal Law (Codification and Reform) Act
• Whether Mupiwa constructed the bridge as an employee/subcontractor of the fifth offender or in his individual capacity as hired by the second and third offenders
• What is the appropriate sentence for fraud committed in aggravating circumstances involving corruption, public funds, and abuse of positions of trust
• Application of the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 (SI 146/2023)

1. The second, third and fourth offenders were each sentenced to 18 years imprisonment, of which 3 years imprisonment was suspended for 5 years on condition that the offender does not commit any offence involving dishonesty within that period for which upon conviction the offender is sentenced to imprisonment without option of a fine (effective 15 years imprisonment). 2. In addition, the second, third and fourth offenders were each sentenced to pay a fine of US$5,000 or equivalent in local currency at prevailing rate, in default of payment 12 months imprisonment. 3. The fifth offender (Anstand Investments (Pvt) Ltd) was sentenced to pay a fine of US$5,000 or equivalent in local currency at prevailing rate, with a Writ of Execution to be issued against its movable and immovable property for non-payment.

1. Fraud committed through misrepresentation that induces a party to act to its prejudice by making payment based on false information constitutes an offence under section 136(a) and (b) of the Criminal Law (Codification and Reform) Act. 2. Where offenders occupy positions of trust (public officials and company directors), commit fraud involving public funds, operate as an organized criminal gang with prior planning and premeditation, these constitute aggravating circumstances warranting substantial custodial sentences. 3. Courts must apply the Criminal Procedure (Sentencing Guidelines) Regulations, 2023, paying due regard to presumptive penalties and providing reasons for any departure. 4. In fraud cases involving corruption and abuse of public office, the sentencing objectives of retribution, deterrence, prevention of reoffending, and forfeiture of benefits from criminal conduct must predominate. 5. Corruption by public servants, particularly in a developing country, is viewed with abhorrence and requires deterrent sentences; imprisonment is called for unless there are cogent reasons indicating the contrary. 6. The constitutional imperative of good governance under section 9 of the Constitution requires measures to expose, combat and eradicate corruption and abuse of power by those holding public offices.

The court noted that it would be naive to sentence on the basis that the second and third offenders benefitted nothing from the commission of the offence, implying they likely received benefits beyond what was disclosed. The court observed that a rural district council is not endowed with the same revenue generating streams as its urban counterpart, highlighting the particular harm caused when public funds meant for infrastructure development in rural areas are diverted. The court acknowledged that despite the corrupt circumstances of construction, Hurungwe now boasts an excellent bridge at Chehoko, though this did not materially affect the sentence. The court noted its own efforts did not uncover any case in Zimbabwe where courts have sentenced an artificial person to perform community service, implicitly questioning whether such a sentence would be appropriate. The court referenced developing sentencing trends in fraud cases involving corruption, citing S v Dziva (HH 256/24) involving US$10,000 with 10 years imprisonment (2 suspended) and S v Sibanda (HH 138/25) with 20 years imprisonment (5 suspended, effective 15 years).

This case is significant in Zimbabwean jurisprudence for establishing sentencing trends for fraud involving corruption, abuse of public office, and organized criminal conduct in the context of the Criminal Procedure (Sentencing Guidelines) Regulations, 2023. It emphasizes the constitutional imperative of good governance under section 9 of the Constitution and demonstrates the judiciary's commitment to combating corruption through substantial custodial sentences. The case illustrates how courts will consider corruption involving public funds and abuse of positions of trust as aggravating factors warranting lengthy imprisonment. It also addresses sentencing of corporate offenders (artificial persons) who cannot serve custodial sentences but face significant financial penalties enforced through writs of execution. The judgment reinforces that corruption by public servants in a developing country will be met with severe punishment to maintain public confidence in the criminal justice system.