JOEL NORMAN SENGEREDO v THE STATE
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA & GUVAVA JA
HARARE, FEBRUARY 26 & NOVEMBER 10, 2014
T Mugabe, for the applicant
I Muchini, for the respondent
CHIDYAUSIKU CJ: This application was referred to this Court by the court a quo in terms of s 24(2) of the old Constitution of Zimbabwe (hereinafter referred to as “the Constitution”). The facts forming the background to this application are the following –
The applicant was charged in the magistrate’s court with two counts of fraud as defined in s 136(B) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In Count One it is alleged that on 19 February 2008 and at no. 30 East Road, Avondale, Harare, the applicant unlawfully, and with intent to defraud, misrepresented to the complainant in Count One that he was selling a property, stand number 521 St Patrick’s Close, Helensvale Township, Harare (“the stand”), when he well knew that he was not selling the said property but only intended to induce the complainant in Count One to act upon the misrepresentation and pay him some money. As a result of this misrepresentation the complainant in Count One paid the applicant the sum of US$62,000 (Sixty-two thousand United States dollars), thereby causing the complainant in Count One to suffer prejudice in the amount of US$62,000 (Sixty-two thousand United States dollars).
In Count Two it is alleged that on 11 October 2008 and at no. 30 East Road, Avondale, Harare, the applicant unlawfully, and with intent to defraud, misrepresented to the complainant in Count Two that he was selling a property, stand number 521 St Patrick’s Close, Helensvale Township, Harare, yet in truth and in fact he was not selling the said property. The applicant made the misrepresentation when he well knew that he was not selling the said property but only intended to induce the complainant in Count Two to act upon the misrepresentation. The complainant in Count Two paid the applicant the sum of US$48,500 (Forty-eight thousand five hundred United States dollars), thereby causing the complainant in Count Two to suffer prejudice in the amount of US$48,500 (Forty-eight thousand five hundred United States dollars). In short, the applicant sold the same stand to two different people from whom he received the above amounts.
The applicant was arrested by the police in connection with the above allegations. He was made to sign a warned and cautioned statement on 15 February 2009 after being formally advised that criminal proceedings were being preferred against him. On 17 February 2009 he was placed on remand on these allegations. On 05 November 2009, after attending court on no less than ten occasions, further remand was refused.
It would appear from the record that some time in November 2010 a decision was arrived at by a law officer in the then Attorney-General’s Office to decline prosecution, on the ground that the allegations against the applicant do not constitute a criminal offence. He opined that the allegations against the applicant constituted a civil wrong, for which the complainant could sue the applicant. Quite clearly, this conclusion by the law officer is erroneous. The alleged conduct of the applicant, if proved, constitutes both a criminal offfence and a civil wrong.
In May 2011 the Attorney-General rescinded his earlier decision to decline prosecution and directed that the applicant be re-summoned to attend court. It would appear that the Attorney-General rescinded the earlier erroneous decision after representations from the complainant in Count One.
On 10 August 2011 the applicant was placed on remand and thereafter remanded on a number of occasions.
On 20 February 2012 the applicant made an application for referral of this matter to this Court for determination in terms of s 24(2) of the Constitution. The trial magistrate granted the application and the matter was referred to this Court.
