- FUNGAYI NYANGARI (2) HEATHER SHAMU
SUPREME COURT OF ZIMBABWE
GWAUNZA JA, GOWORA JA & PATEL JA
HARARE, MARCH 20, 2014
B Pesanai, for the appellants
E Nyazamba, for the respondent
GOWORA JA: After hearing counsel in this matter, we dismissed the appeal against both conviction and sentence. We indicated that our reasons would follow. These are they.
This is an appeal against the decision of the High Court, dated 13 September 2011, confirming the conviction of and sentence imposed upon the appellant by the Magistrates’ Court. The appellant and one other were convicted of one count of contravening s 136 of the Criminal Law (Codification and Reform) Act [Cap 9:23], (“the Code”) i.e. one count of fraud involving the sum of USD 15 200. They were each sentenced to four (4) years imprisonment, of which one year was suspended for five years on condition of good behaviour. A further one year was suspended on condition that each paid restitution to the complainant in the sum of USD 7 600 by 31 (sic) February 2010.
The court a quo found that the evidence showed that the appellant and her sister, one Mary Nyangari, were liable as co-perpetrators of the offence in terms of s 195 of the Code. From the evidence led, the appellant approached the complainant seeking foreign currency. It was agreed that the appellant would give the complainant the equivalent in local currency which would be transferred into the complainant’s creditors’ accounts electronically. Between 25 and 27 September, the complainant gave the appellant the sums of USD 8 000, USD5 000 and USD 3 000.
The Magistrates’ Court found, and the High Court confirmed, that the appellant and her co-accused, a supervisor within the Bank, used fake RTGS forms to dupe the complainant into believing that the equivalent in local currency had been transferred into the specified accounts. In our view the evidence before the Magistrates’ Court clearly supported a finding of guilty and the High Court cannot be faulted in upholding the conviction of the appellant.