DONALD MUBAIWA KASEKE
HIGH COURT OF ZIMBABWE
HARARE, 27 April 2011
Application for Bail Pending Appeal against both Conviction and Sentence
K. Maeresera,for applicant
E. Nyozamba,for respondent
MUTEMA J: The applicant was arraigned before a regional court facing a charge of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. He pleaded not guilty but was convicted as charged. He was sentenced to 4 years imprisonment of which 1 year imprisonment was suspended for 3 years on the usual conditions of good behaviour and a further 2 years suspended on condition he made restitution to the complainant in the amount of US$65 000 on or before 31 March, 2011. He thus would serve an effective 1 year imprisonment.
The gravamen, of the charge is that on 8 December 2008, applicant misrepresented to the complainant Robson Tapfuma that house number 8 Newstead Road, Marlborough was up for sale when it was not and when he had no right to dispose of it. This conduct occasioned actual prejudice to the complainant to the tune of US$65 000.
It is settled that in an application of this nature the following factors must be considered;
- Prospects of success on appeal
- Risk of abscondment
- Likely delay before the appeal is determined.
Ad Prospects of Success
The conviction was grounded solely on circumstantial evidence. That type of
evidence, where it fits like a puzzle is one of the best types of evidence. In casu the only reasonable inference to draw, based on the various strands of the circumstantial evidence, was that the applicant was part and parcel of the fraud. The evidence relied upon by the trial court is this:
Applicant was the custodian of the title deeds to the property in question. They belonged to his late father. Applicant was residing at the premises in question in the cottage while the main house was being leased by a tenant. He was staying with Robert Sirika and Thomas Mugoni some of the fraudsters who are still at large. When the investigating officer approached the applicant in connection with the fraud and asked where Sirika and Mugoni were, the applicant said he did not know them. When asked for the house’s title deeds the applicant produced deeds pertaining to a totally different property. On being quizzed why he was giving the officer wrong deeds that was when the applicant said the correct deeds where taken by Robert Sirika and Thomas Mugoni yet initially he had denied knowing them. Applicant could not proffer any reason why the two had taken the deeds save to say that they had asked for them. On searching the applicant’s abode the investigating officer stumbled upon an old diary belonging to the applicant. On a page of the diary there was a breakdown of funds allocation totalling $50 000. The allocation had names of Don, so much (representing Donald the applicant) Rob, so much (for Robert) Tom, so much (for Thomas), Mike, so much (for Michael) the agent at Pinnacle Properties who facilitated the sale of the house) etc. Other breakdowns went as follows:
“I Donald Kaseke have … rent plus deposit and have agreed that they move their things today. Get my passport, organise to leave the country. Pay lobola. Cut my locks (meaning dreadlocks) be a new person. Buy a motor vehicle”.
Then another witness was Doubt Chidziwo a debt collector who said the applicant once approached him with Robert Sirika and he helped them evict some tenants from the house in question in 2008. Later the applicant took him to Bindura to redeem the original deeds for the house from some person applicant had pledged them to as surety for a loan. When the applicant paid him for his (witness’s) services he gave the deeds to the applicant and that was still in 2008. He later met the applicant driving a car recently purchased. Subsequently the applicant told him he had sold the house in question.
Such circumstantial evidence leads only to one reasonable inference, viz that the applicant participated in the fraud. In the event, prospects of success are nil.
Risk of abscondment
When the application was heard, the 31 March, 2011 deadline for restitution had passed with the applicant having failed to make any restitution at all. Having felt the rigours of imprisonment and with no prospects of success on appeal, the applicant is likely to abscond. The likelihood is real.
Likely delay before the appeal is heard.
In view of the foregoing, even if the hearing of the appeal is likely to be delayed, the applicant will not suffer any prejudice at all by continuing to serve sentence. In fact this will be to his advantage. The interests of justice demand that persons properly convicted and sentenced must quickly serve their punishment. The sentence seems on the lenient side in view of the prejudice caused.
In the result, the application be and is hereby dismissed for lack of merit.
Sakutukwa & Partners, applicant’s legal practitioners
Attorney General’s Office, respondent’s legal practitioners