Kagonye v State (32 of 2024) [2024] ZWSC 32 (26 March 2024)

Judgment No. SC 32/24 Civil Appeal No. SC 287/23 REPORTABLE

(32) PETRONELLA KAGONYE v THE STATE SUPREME COURT OF ZIMBABWE MAVANGIRA JA, CHIWESHE JA & KUDYA JA HARARE: 9 OCTOBER, 2023 & 26 MARCH, 2024 T. Magwaliba with R. Huni, for the appellant C. Muchemwa, for the respondent MAVANGIRA JA:

1. This is an appeal against the whole judgment of the High Court handed down on 17 October 2022, dismissing the appellant’s appeal against her conviction and sentence, on a charge of theft of trust property, by the Regional Magistrate, Eastern Region (Anti-Corruption Court) on 8 June 2022. FACTUAL BACKGROUND

2. The appellant is a former Minister of Public Service, Labour and Social Welfare. She was arraigned before the Regional Magistrates Court (the trial court) facing two counts of contravening s 136 of the Criminal Law (Codification and Reform) Act, [ Chapter 9:23] (the

Judgment No. SC 32/24 Civil Appeal No. SC 287/23 Code), being fraud and one count of contravening s 113 (2) of the same Code, being theft of trust property. The judgment of the trial court records at pp 2-3 that: “The developments that then ensued are that the first count was discharged at the close of the State’s case and the 2 nd count was withdrawn after plea. The court is now concerned with the 3rd count which saw the light of the full trial.” After the full trial, the appellant was found guilty as charged.

3. The charge on the remaining count was crafted as follows: “CONTRAVENING SECTION 113(2) OF THE CRIMINAL LAW CODIFICATION AND REFORM ACT CHAPTER 9:23 ‘THEFT’ OF TRUST PROPERTY (sic) In that on the date that is unknown to the Prosecutor but during the period extending from 01 June 2018 to 12 July 2020 and at POTRAZ, Harare, Petronella Kagonye took twenty (20) computers from POTRAZ, Harare, with an agreement that she (Petronela Kagonye) was going to hold those computers in trust and only give them to Goromonzi South Schools and in so doing beneficiary schools were to sign for those computers and the accused would submit acknowledgement of receipts (sic) of such computers to POTRAZ, in breach of this agreement accused failed to give any such schools such computers and further failed to give to POTRAZ proof of receipt of such computers by such schools. The accused in so doing failed to account for the computers given to her when called to do so by POTRAZ.”

4. The allegation as set out in the outline of the State case was that on a date to the Prosecutor unknown but during the period extending from 1 June 2018 to 12 July 2020, the appellant wrote a letter to the Ministry of Information, Communication Technology requesting computers to donate to schools in Goromonzi South.

5. On 20 June 2018, the then Minister, Honourable Mandiwanzira wrote a letter to POTRAZ requesting that POTRAZ facilitates a donation of computers through its E-Learning Project, to Goromonzi South Schools. POTRAZ donated twenty computers for Goromonzi South Constituency schools. The computers were collected by the appellant’s brother, who also served as her driver, on her behalf. The brother signed the collection form.

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6. POTRAZ made follow-ups on the donation with the appellant and the computers could not be accounted for. No school in Goromonzi South confirmed receipt of any of the donated computers, thereby showing that Goromonzi South schools had been permanently deprived of the computers donated to them by POTRAZ.

7. The value of the stolen computers was given as USD8 000,00. Nothing was recovered.

THE TRIAL

8. The appellant pleaded not guilty to the charge.

9. The State led evidence from three witnesses; Kennedy Dewera, Evans Kagonye and Gilbert Manyore. The State also produced documentary evidence which included:

1. A letter by the appellant as the then Minister of Labour and Social Welfare, addressed to the Minister of Information, Communication, requesting for a donation of computers for schools in Goromonzi South Constituency.

2. A letter by the then Minister of Information, Communication, Technology and Cyber Security, Honourable Supa Mandiwanzira directed to the chairman of the board of trustees being a request for a donation of computers for schools in Goromonzi Constituency.

3. A list of primary and secondary schools scheduled to receive the donated computers.

4. POTRAZ equipment handover form.

5. A letter by the appellant to POTRAZ authorising Evans Kagonye to collect the donated computers.

10. A perusal of the documentary evidence in conjunction with the oral evidence adduced before the trial court shows that on 12 July 2018, POTRAZ facilitated the donation of laptops, which laptops were collected from POTRAZ by the appellant’s brother and driver,

Judgment No. SC 32/24 Civil Appeal No. SC 287/23 Evans Kagonye, acting on her behalf. He signed a handover form acknowledging that he had received the twenty laptops on behalf of the appellant. The top part of the handover form reads as follows: “POTRAZ ICT EQUIPMENT HANDOVER FORM The following ICT Equipment has been handed over to Hon. Kagonye for distribution to Goromonzi South Schools - 2 schools 10 computers per school. Purpose: E-Learning Project LIST OF ICT EQUIPMENT HANDED OVER.

The italicised part above is handwritten. The handover form thereafter reflected, in a columnar presentation, the make, model and serial number of each of the twenty laptops.

11. The form also contained the following portion: “I Evans Kagonye in my capacity as driver have collected and agree to hold in trust the above ICT equipment for e-learning purposes on behalf of beneficiaries intended under the USF e-learning project. I undertake to hand over the ICT equipment to the intended beneficiaries submit a list of the beneficiaries and contact details to USF/POTRAZ within 30 days of receipt of the ICT equipment.” The name and capacity which are in italics above, are also filled in by hand.

12. Below the portion quoted in para 11 above, the form called for information as to, inter alia, the recipient’s name, ID number, mobile number, signature, date and all this information was completed on the form. Evans Kagonye was indicated as the recipient. The form also indicated that the handover was done by one “H. Jena.” A perusal of the record reveals that her full name is Hilda Jena.

13. The evidence of Kennedy Dewera was to the effect that he was the Director of Universal Sarfs Fund, Postal and Courier Services and he managed programmes under the fund,

Judgment No. SC 32/24 Civil Appeal No. SC 287/23 including the e-learning programme. He explained that the e-learning programme “is designed to ensure that schools in areas that are underfunded can receive computers, internet connectivity, i.e. I.C.T. gadgets, projectors, printers, etc. ” It was his evidence that when the appellant made a request for the computers on 20 June 2018, he made it a point to check that none of the targeted schools had benefited from the fund before. Twenty computers were allocated to the appellant for distribution to any two of the twenty-eight schools that she had listed. He did the final execution process of the disbursement and the laptops were donated and collected by Evans Kagonye who came to collect them, with a letter signed by the appellant. This was because a request had been made by the appellant that Evans collect the computers on her behalf. Evans signed the handover forms upon collection of the laptops.

14. It was also the witness’s evidence that the terms of the donation handover forms were that once laptops had been donated, acknowledgement forms from the schools were supposed to be returned in thirty days. In the event that the forms were lost, follow ups would be done with the schools. The forms were handed over to Evans when he collected the laptops. In May, 2019, POTRAZ made a request for the forms but both Evans Kagonye and the appellant, failed to return them.

15. Upon request for the information, the appellant failed to disclose the schools which had received the computers. Such information would have enabled the witness to make a follow up with the schools, on the acknowledgement forms. It was thus the witness’ evidence that the result of the follow-up on the donation that he made on behalf of POTRAZ with the appellant was that the laptops could not be accounted for. The appellant

Judgment No. SC 32/24 Civil Appeal No. SC 287/23 failed to give POTRAZ proof of receipt of such laptops by any two schools in Goromonzi South District.

16. The witness was clear that he only acted on the letter written on 20 June 2018 and that POTRAZ never received any other letter with a request from or on behalf of the appellant. It was also his evidence, in answer to questions put to him, that there was no distinction between a ‘laptop’ and a ‘computer’ as both served the same purposes. The importance and relevance of this part of the witness’ evidence will be appreciated when the appellant’s evidence in her own defence is related to later in this judgment. In its assessment of the witness, the court a quo found that he was credible and that he stuck to his story which was supported by the documentary evidence available.

17. The second State witness was Evans Kagonye. He stated that in 2018 he was employed by the Ministry of Labour and Social Welfare as the appellant’s personal driver. The appellant is his sister. He gave evidence to the effect that he was tasked by the appellant’s personal assistant, one Catherine Befura, to go to POTRAZ and collect twenty computers. He however collected laptops and was made to sign upon collection. He prevaricated on whether or not he first delivered the laptops and the handover form to the appellant before the laptops were handed over to the party campaign committee. This happened during the election season. The trial court found his evidence to be questionable.

18. Gilbert Manyore, the investigating officer in the case, was the State’s third and last witness. He had received an anonymous letter indicating that the appellant was involved in corrupt activities and thus commenced investigations. It came to his knowledge that the appellant

Judgment No. SC 32/24 Civil Appeal No. SC 287/23 was supposed to have handed over donations of computers to schools. When he inquired which schools had received the computers, the appellant failed to provide such information. He stated that he had had sight of all the documents that indicated that the appellant, through Evans, had collected the computers from POTRAZ.

19. In defence, the appellant’s evidence was to the following effect. She, through a letter dated 26 June 2018, wrote to the Ministry of ICT requesting for computers. She was however made aware that they were out of computers but had ‘laptops’. POTRAZ subsequently called her office for her to collect twenty laptops on 12 July 2018. She acknowledged having directed Evans to collect the laptops on her behalf. The appellant contended that when the laptops were collected by Evans, they were handed over to the campaign committee and that she was present only on two occasions when two of the laptops were distributed. However, at the time the remaining laptops were handed over to the beneficiaries she had left the country. In support of this, copies of her VISA and passport pages were tendered as exhibits during trial.

20. The appellant’s defence was that the request for computers was not the same as a request for laptops. The appellant submitted that unlike the request for computers, which computers were to be donated to schools, the request for laptops was meant for the less privileged people. She indicated that the laptops had been distributed to students during her campaigns. The appellant however failed to account for the laptops through their serial numbers. She did not keep a record of the recipients of the laptops. Such information was never recorded for purposes of accountability. Her explanation was that she did not think that such information was required by POTRAZ.

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21. The appellant denied having received from Evans the signed handover form or having had sight of its contents.

22. Under cross examination the appellant was asked whether POTRAZ requested her to do another letter specifically requesting laptops and her answer was in the negative. Her answer was also in the negative when she was asked whether a separate letter was written authorizing Evans to collect laptops since the letter dated 12 July 2018 only spoke of computers.

23. Catherine Befura gave evidence to the effect that when POTRAZ called their office to collect laptops, she asked the appellant to sign a letter in order for the laptops to be collected. When Evans brought and delivered the laptops, she never received any accompanying documentation from him. Twenty laptops were collected and delivered by Evans and she handed them over to the appellant’s campaign manager. She averred that at the time of the donation there was no list of beneficiaries and she never recorded the serial numbers of the laptops.

24. The campaign manager, Malvin Matimura, stated in his testimony that the appellant had “officiated (at) two centers to witness the distribution of the laptops. There is a house which got burnt and there was a girl called Nyasha going to school who needed a laptop so we went to the house with the accused. We gave them groceries, blankets and laptop. … We went to Holy Creche which is led by Mrs Kanengoni and we gave them a laptop .” When he was asked as to who distributed the other eighteen, his response was: “ We would arrive at the ward and we would give to the needy after an assessment.” On whether he had recorded any information relating to the specific persons who received the laptops, he said: “These were donations some would simply give people and we would record in other

Judgment No. SC 32/24 Civil Appeal No. SC 287/23 instances and others were not recorded we were racing against time.” On whether he had any information concerning the laptops, he responded “ We have two children whom we handed out laptops at a rally.”

25. Three recipients of the laptops testified in the trial court as having received laptops from the appellant and the laptops, as identified by their serial numbers, were tendered in