This is a matter rising out of the trial of one Anderson Tagara at the Magistrates Court, Harare on a charge of fraud as an accessory after the fact in contravention of section 206 as read with section 136 of the Criminal Law Code [Chapter 9:23].At the conclusion of that ...
This is a matter rising out of the trial of one Anderson Tagara at the Magistrates Court, Harare on a charge of fraud as an accessory after the fact in contravention of section 206 as read with section 136 of the Criminal Law Code [Chapter 9:23].
At the conclusion of that trial, Anderson Tagara was found guilty and sentenced to a fine of $4,000 or, in default of payment, 12 months imprisonment. In addition, he was sentenced to 12 months imprisonment wholly suspended for five years on condition of future good behaviour.
Anderson Tagara is not a party to the present application, and probably does not want to in light of his recent brushes with the law.
The facts themselves, if this was not an extremely unfortunate matter involving loss of huge sums of money and the use of the name of God in vain, would have been comic indeed.
What the trial court found to have been proven is that Ndabazinengi Shava purchased a Bentley Continental motor vehicle registration number AVO 1759 from Anderson Tagara for a sum of $230,000 after the latter had imported the luxury wheels from the United Kingdom. Shava did not execute a change of ownership of the vehicle into his name but it remained in the name of Tagara.
Firmly believing in the power of the Almighty which can bring abundant blessings to God-fearing people, Ndabazinengi Shava took the Bentley to a well known “prophet” one Eubert Angel Mudzanire who promised him abundant blessings if he “seeded” the Bentley to the man of God.
They agreed, that, if Ndabazinengi Shava's fortunes multiplied three-fold within eight months of “seeding” the Bentley to the prophet, the prophet would assume ownership; but, if such did not eventuate, the Bentley would be returned to Shava.
As is usual with anything human, Ndabazinengi Shava's fortunes remained rooted in the same position at the expiration of the eight months period, and, when he sought to recover the Bentley, he discovered to his shock, that, the prophet had purported to sell the Bentley to the first respondent for a paltry sum of $76,000.
Ably assisted by Anderson Tagara, they had signed a sale agreement to facilitate change of ownership.
The prophet made good his escape leaving Anderson Tagara at the mercy of the long arm of the law.
Even the help of a couple of the prophet's relatives, who testified in his favour, could not save Anderson Tagara who was convicted and sentenced aforesaid.
The trial magistrate was requested by State counsel to issue a disposal order relating to the Bentley, in terms of section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], as it had been exhibit 4 during the trial.
He skated the issue and ruled as follows at p29 of his judgment:
“I have also considered whether I should order that the Bentley motor vehicle should be returned to the complainant. I have noted, that, the motor vehicle is currently in the hands of an innocent purchaser, and that, by handing the registration book over to Eubert Angel Mudzanire, the complainant made it possible for Eubert Angel to represent himself and (sic) the owner. The innocent part (sic) can easily raise a defence of stoppel (sic) against the complainant, because of this it is best to leave the issue of the motor vehicle to the Civil Court. In any case, it was clear that the issue of the motor vehicle is already before the High Court; it will be best to leave it to be finalised there.”
Whatever it is that the magistrate was saying, the bottom line is that he was washing his hands of the Bentley, Pilate style, and in the process abdicating his adjudicating duties.
It is either Ndabazinengi Shava was entitled to the Bentley or the first respondent was. There can be no middle road - never mind the existence of a Civil Court....,.
The applicant states, that, the magistrate was required, by section 61 of the Criminal Procedure and Evidence Act [Chapter 9:07], to issue a disposal order in favour of Ndabazinengi Shava, upon an application being made before him to do so, because he had made a finding that the Bentley belonged to Shava.
I agree.
Section 61(1) of the Criminal Procedure and Evidence Act provides:
“Subject to this Act, and, except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in section 60, or produced in evidence –
(a) If the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or
(b) If the person from whose possession it was obtained is not entitled to the article, or may not lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or
(c) If no person is entitled to the article, or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.”
In my view, the section reposes upon a trial court the discretion to proceed in terms of three available options set out therein.
The Bentley formed the subject of the criminal prosecution and was produced as evidence, and, therefore, in the custody of the court. At the conclusion of the trial, the magistrate should have issued a disposal order in terms of section 61(1) of the Criminal Procedure and Evidence Act: see S v Muzvaba HH360-13.
The magistrate made clear findings, that, the vehicle belonged to Ndabazinengi Shava and his decision to become ambivalent at the end was not helpful at all. At p12 of his judgment he stated:
“I therefore believe the accused when he say(s) he imported the Bentley motor vehicle on his own, and, when the motor vehicle was finally delivered in Harare, the complainant stated that he was interested in the motor vehicle and accused sold the motor vehicle to the complainant for US$230,000 and complainant paid in full the money and accused gave him the Bentley in question together with all the documentation and the number plates which were not yet fixed in the motor vehicle, but the two did not reduce anything to writing.
However, the issue of whether the complainant gave the accused money to import the motor vehicle in question or not is neither here nor there. It is not very important because the moment when accused sold the motor vehicle to the complainant, and through their verbal agreement, the accused passed ownership to the complainant of the motor vehicle in question. What is important is to decide what happened after mid-May 2012 when the complainant was now the true owner of the Bentley motor vehicle in question.”
After indulging himself a lot about matters of religion and how the prophet was required to intercede between Ndabazinengi Shava and God for the former to be showered with blessings, the magistrate again pronounced at p18 of the judgment:
“What this mean(s) is that when the complainant handed over the car and the registration book, he did not pass ownership because he never formulated that intention. Ownership was only going to pass to Eubert Angel after realisation of blessings, and Eubert Angel knew that ownership had not passed to him and that necessary ownership transfer document was to be done upon complainant receiving blessings. Eubert Angel was also aware, that, in the event of no blessings by complainant, complainant was to get his car back. To this end, Eubert Angel, though well aware that he had not acquired ownership, proceeded to dispose of the motor vehicle as if he was the owner. The motor vehicle had been placed under the custody of Eubert Angel pending the fulfilment or otherwise of the condition precedent to him getting ownership.”
I have stated, that, section 61(1) of the Criminal Procedure and Evidence Act permits the trial court to order the return of the article to the person from whom possession was obtained if that person may lawfully possess the article.
The court found, that, Ndabazinengi Shava was the owner and that ownership did not pass to Eubert Angel. Prior to that, ownership had passed from Anderson Tagara to Shava - even though documentation had not been done.
Clearly, therefore, by its findings, the trial court should have ordered the return of the vehicle to Ndabazinengi Shava.
It did not, contenting itself with passing the buck to some other court.
It matters not that the first respondent was not a party to the criminal proceedings. He could not be as he was not an accused person.
What remains is that section 61(1) of the Criminal Procedure and Evidence Act allows for the return of the article to the lawful owner at the conclusion of the trial.
