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.
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. Ndabazinengi Shava did not execute a change
of ownership of the vehicle into his name but it remained in the name
of Anderson
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 Shava's fortunes multiplied
threefold 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 Ndabazinengi 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 skirted the issue and
ruled as follows…,.;
“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, who is the Prosecuting authority in this country, has
since challenged the decision of the magistrate by way of review
application made in this court and that application is yet to be
determined. Meanwhile, the first respondent continues to enjoy the
use of the Bentley, a situation which riles the applicant who has now
come to court on an urgent basis seeking the following relief:
“TERMS
OF THE FINAL ORDER (SOUGHT)
1.
The first respondent be and is hereby ordered to surrender a motor
vehicle, a Bentley Continental, registration number ACO 1759, engine
number CKH002121, chassis number SCBDN 23WOBC68378 to Ndabazinengi
Shava (complainant in case CRB R 104/15) within 24 hours of the
granting of this order pending the outcome of the main application
for review.
2.
The respondents to bear costs of this suit if they oppose this
application.
INTERIM
RELIEF (GRANTED)
1.
The first respondent is directed not to use or dispose of the motor
vehicle Bentley Continental, registration number ACO 1759, engine
number CKH003121, chassis number SCDDN 23 WOBC 68378….,.
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 Ndabazinengi Shava.
I
agree.
Section
61(1) of the Criminal Procedure and Evidence Act [Chapter
9:07]
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 s
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 [Chapter
9:07]:
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 page 12 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 page 18 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 [Chapter
9:07]
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 Mudzanire.
Prior to that, ownership had passed from Anderson
Tagara to
Ndabazinengi
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 [Chapter
9:07]
allows for the return of the article to the lawful owner at the
conclusion of the trial.
