The State v Samuel Zengeya Mlambo

The accused was charged with fraud in terms of section 136 of the Criminal Law Codification and Reform Act. On 2 October 2004, the complainant purchased a car from the accused for Z$15,000.00. When called upon to deliver the vehicle, the accused failed to do so, stating that the car belonged to someone else. The accused pleaded not guilty but was convicted. The trial magistrate sentenced him to 12 months imprisonment wholly suspended on condition that he restitute the complainant US$1,500.00 by 31 August 2012. The magistrate arrived at this figure by enquiring from the complainant what the Zimbabwean dollar equivalent would be in current currency, considering the value of second-hand vehicles on the market.

• Whether the conviction for fraud was proper
• Whether the trial magistrate correctly determined the amount of restitution to be paid
• What is the legally correct method for determining foreign currency exchange rates for purposes of calculating restitution in criminal matters
• Whether seeking the exchange rate from the complainant (an interested party) was proper

1. The conviction is confirmed; 2. The sentence is set aside; and 3. The matter is returned to the same magistrate for re-assessment of the sentence after assessing the official foreign exchange rate at the time of the offence.

When determining restitution amounts in criminal matters that require currency conversion, courts must use the official foreign currency exchange rate as determined by the Reserve Bank of Zimbabwe at the time of the offence. Courts are not permitted to rely on exchange rates provided by interested parties (such as complainants) or informal market rates. The Reserve Bank of Zimbabwe is the only authority competent to determine legally binding exchange rates for judicial purposes.

The court acknowledged the economic difficulties Zimbabwe experienced and noted that during this period many foreign currency dealers emerged, resulting in a "free-for-all" in foreign currency exchange rates and considerable confusion. However, the court emphasized that despite this confusion, the Reserve Bank of Zimbabwe remained effectively in control of determining correct and legal exchange rates.

This case establishes important principles regarding the calculation of restitution in criminal matters involving historical currency values during Zimbabwe's economic crisis. It clarifies that only the Reserve Bank of Zimbabwe's official exchange rates may be used for legal determinations of currency conversion, not rates obtained from interested parties or informal market sources. This ensures consistency, objectivity and legal certainty in sentencing matters involving restitution across different currency regimes. The judgment provides guidance to magistrates on the proper methodology for assessing restitution amounts when currency conversion is required.