CHIKUKU v THE STATE

HIGH COURT, HARARE

[Criminal Appeal HH 527-16]

September 12, 2016

HUNGWE AND MUSAKWA JJ

Criminal law – General principles – Liability – Director or employee of a company – Vicariously liable for criminal acts of other directors or employees.

The appellant was employed by a company as a clerk. A director of the company, together with the appellant’s co-accused (who had since died), bought maize from the complainant, purporting to act on behalf of a company. The maize was delivered to the company’s premises and an invoice was issued. The appellant undertook to have the complainant paid, but no payment was made. When the complainant called to see the appellant, he was told that the appellant was elsewhere in the country. The appellant was convicted of fraud. On appeal, the issue of his liability for the offence was raised.

Held, that in terms of s 277 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], any conduct on the part of a director or employee of a corporate body who is acting in the exercise of his or her power or in the performance of his or her duties as such, or in furthering or endeavouring to further the interests of the corporate body, shall be deemed to have been the conduct of the corporate body. In terms of s 277 (3), any conduct, which constitutes a crime for which a corporate body is or was liable to prosecution, is deemed to have been the conduct of every person who at the time was a director or employee of the corporate body. However, where it is proved that a director or servant took no part in the conduct, such criminal liability shall not apply to him or her. The onus is on the director or servant to prove on a balance of probabilities that he did not take part in the commission of the offence and could not have prevented it. Here, although the appellant was not the one who initially made representations to the complainant, he subsequently made common cause with the director and his co-accused. This he did by making assurances that payment would be made.

Cases cited:

Attorney-General v Paweni Trade Corp (Pvt) Ltd & Ors 1990 (1) ZLR 24 (S), referred to

S v Coetzee and Others 1997 (3) SA 527 (CC), referred to

S v Todzvo 1997 (2) ZLR 162 (S), referred to

Legislation considered:

Zimbabwe:

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 277 (3)

Criminal Procedure and Evidence Act [Chapter 9:07], s 232

South Africa:

Criminal Procedure Act 51 of 1977

BM Bhala, for the appellant

F Kachidza, for the respondent

MUSAKWA J:

The appellant was convicted together with a co-accused Julius Pasipanodya who is now deceased (hereinafter called the first accused) of three counts of fraud. On the first count, each accused was sentenced to seven months’ imprisonment which was wholly suspended for five years on condition of good behaviour. In respect of the second count, each accused was sentenced to 18 months’ imprisonment of which eight months were suspended on condition each accused restituted the complainant in the sum of US$4 188.80. In respect of the third count, the appellant was sentenced to 18 months’ imprisonment of which eight months were suspended for three years on condition of good behaviour. The remaining ten months were suspended on condition that he restituted the complainant in the sum of US$8 250. Appeal was noted against conviction and sentence.

All the counts relate to the complainants supplying maize which was receipted in the name of a company called Octadav and not being paid save for the complainant in the first count. It appears an advertisement had been placed in the press by Octadav.

Count one

The transaction in the first count does not show the appellant’s involvement at the initial stage, save when he was engaged by the complainant and he assured that payment would be processed. The complainant in the first count was eventually paid. The first complainant’s gripe was that Andrew who was the first to approach him asked him to part with US$ 200 as administration costs. That cannot amount to fraudulent conduct on the part of the appellant.

Count two

The appellant approached the complainant in Karoi on 28 August 2014 and offered to purchase 26.18 tonnes of maize through Octadav. There was no consensus on the price. The appellant subsequently returned with an increased offer. The maize was loaded and they proceeded to Feed Mix in Harare. Thereafter they proceeded to Octadav premises where the maize was offloaded. The complainant was introduced to Liberty Maya, who was said to be the appellant’s employer, together with the first accused. The appellant undertook to have the complainant paid. An invoice was issued. When the complainant called after seven days the appellant was not reachable. The first accused promised to call back but later switched off his phone. Liberty promised to call back but did not.

Count three

The complainant from Lions’ Den took a consignment of 27 tonnes of maize to Irvine’s. Whilst there he was approached by one Andrew who directed him to Feed Mix in Msasa. He was also given the first accused’s phone number. The maize was weighed and offloaded. The first accused issued an invoice in the name of the complainant’s nephew who resides in Msasa. When the complainant returned after seven days he found the premises locked. He called Liberty whose number he had previously been given and he was directed to a filling station along Samora Machel Avenue. The appellant claimed that Liberty was his young brother whilst pleading that payment would be made on the following day.
When the complainant called on the following day the appellant claimed to be in Beitbridge. Later the first accused was called using another person’s phone and pretending to offer maize for sale. The first accused fell for the bait and was arrested. It was also the complainant’s evidence that the appellant claimed he was a maize buyer and showed him records of people he claimed to have paid.

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