Wilfred Nyambo and Auxillia Nyambo v The State

The two appellants, who are husband and wife, were convicted after a contested trial of 8 counts of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act. The State's case was that they sold land (Christmas Gift (Pvt) Limited) which did not belong to the first appellant to various complainants through misrepresentations, causing the complainants to lose money. The State alleged the land belonged to Mr Rogerio Barbosa De Sa. The first appellant's evidence was that he had entered into a memorandum of agreement with De Sa on 25 October 1988 whereby he was offered to purchase 15% shares in DMC Holdings (Pvt) Limited, which comprised four subsidiary companies including Christmas Gift (Pvt) Limited. The first appellant claimed to have paid $100,000.00 in free funds through inter-bank transfer in 1988. Documentary evidence (Exhibits 31, 32, and 36) showed De Sa had authorized the first appellant to deal with Christmas Gift (Pvt) Limited. De Sa testified he offered 15% shares but claimed the first appellant never took up the offer or paid for the shares.

• Whether the appellants made misrepresentations about ownership of the land in question
• Who was the lawful owner of Christmas Gift (Pvt) Limited
• Whether the first appellant had the right to deal with the land in question
• Whether the essential elements of fraud under s 136 of the Criminal Law (Codification and Reform) Act were proven

The appeal was allowed. The conviction was quashed and the sentence was set aside. The appellants were found not guilty and were acquitted.

For a conviction of fraud under s 136 of the Criminal Law (Codification and Reform) Act to be sustained, the State must prove beyond reasonable doubt that the accused made a misrepresentation. Where the accused has documentary evidence showing authorization from the purported owner to deal with property, and there is no evidence of withdrawal of such authorization, there can be no misrepresentation and therefore no fraud. The State must prove ownership of property conclusively where ownership is central to establishing the misrepresentation element of fraud.

The court observed that Mr Rogerio De Sa was a close friend of both appellants whom he trusted very much. The court also noted that the Supreme Court case of Anthony Hickey v DMC Holdings (SC 17/14) showed that Anthony Hickey holds a 30% shareholding in DMC Holdings (Pvt) Limited, and that DMC Holdings is a 100% shareholder in Christmas Gift (Pvt) Limited, which meant that Rogerio De Sa was not the sole owner of Christmas Gift. The court commented that the second appellant was responsible for all administrative issues and was assisting the first appellant in acting pursuant to the memorandum of agreement.

This case is significant in Zimbabwean criminal law as it demonstrates the critical importance of the State proving all essential elements of fraud, particularly the element of misrepresentation. It establishes that where an accused person has documentary evidence of authorization to deal with property, and there is no evidence of withdrawal of such authority, a fraud conviction cannot be sustained. The case also highlights the duty of the prosecution to prove ownership conclusively where ownership is the central issue in a fraud case. The State's concession that it could not prove ownership demonstrates proper prosecutorial ethics when evidence is insufficient to sustain a conviction.