Mutakura v S (SC 766/25) [2026] ZWSC 14 (17 February 2026)

1Judgment No. SC 45/26Civil Appeal No. SC 766/25 REPORTABLE (45) SAYMORE MUTAKURA v THE STATE SUPREME COURT OF ZIMBABWE MAVANGIRA JA, MAKONI JA & MWAYERA JA HARARE, 17 FEBRUARY 2026 G.R.J. Sithole with A. Rubaya, for the appellant Ms. F. Kachidza, for the respondent MAKONI JA: 1. This is an appeal against part of the judgment of the High Court of Zimbabwe (“the court a quo”), sitting at Harare, dated 29 October 2024. The part appealed against is the part wherein the court a quo upheld the conviction of the appellant by the Magistrates’ Court “(the trial cour”t) on a charge of fraud as defined by s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”). After hearing submissions from counsel, the Court dismissed the appeal and indicated that reasons would follow in due course. These are they. FACTUAL BACKGROUND 2. Before the trial court, in the Magistrates Court, the appellant stood accused with two other co- accused persons, Jacob Muyambo (Muyambo) as the first accused person and Amos Kagona ( Kagona) as the second accused person. Kagona died before the trial court delivered its judgment. The appellant was the third accused person. The appellant and Muyambo were 2Judgment No. SC 45/26Civil Appeal No. SC 766/25 convicted of the offence of fraud and were each sentenced to 20 years imprisonment, of which two years were suspended for five years on the usual conditions of good behaviour. 3. The facts relevant to the determination of this matter were clearly set out by the court a quo, in its judgment, and I will borrow heavily from it. 4. Muyambo was employed by a civil engineering company known as Delatfin Civil Engineerin(Pvt) Ltd (Delatfin). He was the company’s Finance and Administration Manager. Delatfin was in the business of developing and selling residential properties. The disposal of the residential stands was done either by sale through cash payments, or by barter trade, through which Delatfin would receive motor vehicles in exchange for stands. The appellant and the now deceased Kagona, were car dealers who were involved in the barter trade with Delatfin. The appellant and Kagona would trade motor vehicles to Deltafin in return for stands. 5. The allegations against the appellant and his co-accused, which the trial court found to have been proved, are that the appellant, together with Muyambo and Kagona, connived to defraud Delatfin of stands, by giving stands to the appellant and Kagona in circumstances where no corresponding motor vehicles had been delivered as payment for the stands. The further aspects of the fraud involved the allocation of so-called “commonage stands” to the appellant and Kagona. This category of stands was meant to be delivered to the relevant Government Ministry responsible for local government and ought not to have been sold or exchanged. 6. Muyambo in his capacity as Finance and Administration Manager, was alleged to have activated the sale process, prepared or caused to be prepared agreements of sale or barter, presented them to the CEO of Delatfin for signing and actioned the transactions. The evidence indicated tha,t in several instances, a single motor vehicle was recorded as having been 3Judgment No. SC 45/26Civil Appeal No. SC 766/25 exchanged for multiple stands. The appellant and Kagona would then sell these stands to third parties and Delatfin would not receive any value for them. This fraudulent activity prejudiced the company of over US$ 3.3 million. Upon discovery, the appellant, Muyambo, and Kagona were charged with fraud as defined by s 136 of the Code. They pleaded not guilty. PROCEEDINGS BEFORE THE TRIAL COURT 7. The State led evidence through Felix Munyaradzi (Delatfin CEO), Terrence Mambohaatumwi (an internal accountant), Brian Sedze (an external auditor) and Donalbey Mutambo (the investigating officer). Felix Munyaradzi testified that Muyambo was the Finance and Administration Manager of Delatfin. He was therefore in charge of all financial and administrative functions of the company. The appellant and Kagona were known to him as car dealers, who would bring motor vehicles for barter trade with stands. The witness testified that the company’s accounts department alerted him of the fraud, which led him to engage external auditors to investigate. It was the audit report that revealed the appellant and Kagona as the major beneficiaries of the fraud that was being perpetrated against Delatfin. 8. Terrence Mambohaatumwi, the company’s accountant, testified that in the course of his duties he discovered discrepancies in the sale of stands. He noted that there were several stands which had no corresponding entries on the payment schedule. He observed that one motor vehicle was used on multiple agreements of sale for various stands. Thereafter, he forwarded these findings to his superiors, Felix Munyaradzi and Muyambo. He testified that he sent Muyambo a memo with a schedule of the queried stands, showing one vehicle as the consideration for several stands. Muyambo informed him that those transactions were all above board. These stands were allocated to the appellant and Kagona. 4Judgment No. SC 45/26Civil Appeal No. SC 766/25 9. The investigating officer Donalbey Mutambo summed up his findings by stating that the appellant and his co-accused connived and fraudulently sold stands to the prejudice of Delatfin for their personal gain. He had determined that the appellant and Kagona acquired several stands in consideration for one motor vehicle. Finally, Brian Sedze, a certified Chartered Director and member of the Chartered Governance and Accountancy Institute, who was engaged as an external auditor by the CEO of Delatfin, testified last. It was his testimony that upon an investigation, he discovered that there was a failure to reconcile 169 stands. He noted that the sale of the 169 stands did not have a corresponding transfer of revenue. Also, 62 commonage stands had been misappropriated, which were supposed to be remitted to the local authority. There was no proof in the form of receipts for some of the sales. In addition, there were no goods received vouchers for the motor vehicles that were allegedly used in the barter trade. It is upon these findings that the charges were brought against the appellant and his co- accused. 10. In his defence outline, the appellant claimed that in all his dealings with Delatfin, he would barter trade motor vehicles in exchange for residential stands which he and Kagona would sell for cash or trade with third parties. He contended that all the purchasers would thereafter conduct due diligence with Delatfin personally or through their agencies, verifying if they were bona fide purchases, which the company would verify. He also claimed that on other occasions, he and Kagona would find clients for Delatfin who would become purchasers and they would be paid a commission in the form of stands. 11. In fact, the appellant and Kagona accused Felix Munyaradzi of being the party who was defrauding Delatfin. They claimed that it was Felix Munyaradzi’s signature that was on the 5Judgment No. SC 45/26Civil Appeal No. SC 766/25 agreements of sale and as such, he was responsible for the fraud. Under cross-examination, they failed to satisfy the trial court that they, in fact, delivered motor vehicles for all the stands they acquired from the company. 12. The trial court found that the evidence revealed that the accused’s modus operandi was to use Muyambo as the inside person with access and influence in the process of selling stands. The appellant and Kagona would then receive the stands and dispose of them. The trial court found that the appellant and Kagona did not deny taking into their possession and control the stands that were the subject of the fraud. The trial court did not find the allegations by the two that they delivered motor vehicles for the stands to Felix Munyaradzi personally to be true. The court found that such deals were significant in nature and would ordinarily require documentary evidence. In the result, the trial court found that the State managed to establish its case beyond a reasonable doubt against the appellant and Muyambo. They were each sentenced to 20 years imprisonment, with two years suspended on conditions of good behaviour. 13. Aggrieved by this decision, the appellant noted an appeal against both conviction and sentence to the court a quo. PROCEEDINGS BEFORE THE COURT A QUO 14. Before the court a quo, the appellant raised six grounds of appeal against conviction and three grounds of appeal against sentence. A preliminary point was taken regarding the validity of the appeal against sentence, as the notice of appeal did not contain a specific prayer relating to the sentence. The court a quo held that, in the absence of an application for condonation, the appeal against sentence was defective and was accordingly struck off. The court a quo also 6Judgment No. SC 45/26Civil Appeal No. SC 766/25 found that the appellant’s fourth ground of appeal took issue with the amount of US$3 350 865.00 on the basis that no evidence was led to prove the figure. The court a quo, however, found that the issue of the amount was only relevant to the sentence, and since there was no appeal against sentence, the fourth ground was meritless. Resultantly, the court a quo considered five grounds of appeal. 15. In advancing the first ground of appeal, the appellant’s counsel argued that the failure by the State to produce edited agreements of sale showing the added commonage stands cast reasonable doubt on the appellant’s guilt. Counsel argued that the appellant ought to have been acquitted in that regard. On this ground, the court a quo found that the fact of the agreements of sale having been signed was common cause. The court a quo found that in their defense, the appellant and his co-accused contended that these had been signed by Felix Munyaradzi, as well. The court a quo further determined that the fraud was constituted by the disposal of stands at no value to Delatfin in circumstances where there were no motor vehicles or cash paid for the stands by the appellant and Kagona. In that regard, the court a quo determined that the object of the fraud was not the agreements but the stands. Resultantly, the court found the first ground of appeal to be meritless. 16. The second ground of appeal claimed that the onus was placed on the appellant to prove his innocence by requiring him to produce delivery notes of the motor vehicles delivered in barter trade. With regard to this ground, the court a quo found that the statement pertaining to delivery notes was taken out of context. The court found that the statement did not require the appellant to prove his innocence but to rebut the evidence that no motor vehicles had been 7Judgment No. SC 45/26Civil Appeal No. SC 766/25 delivered to Delatfin for the stands that form the subject of the fraud. Consequently, the court a quo found that this ground had no substance. 17. The third ground of appeal challenged the Magistrate’s court’s decision on the basis that he failed to take into consideration the caveat subscriptor doctrine, thereafter not treating the complainant’s (Felix Munayaradzi) evidence with caution since he personally signed the agreements of sale in respect of the commonage stands. On this ground, the court a quo found that the caveat subscriptor doctrine is one that applies in the law of contract and there was no basis for invoking it in criminal proceedings. The court further found that the doctrine does not apply where the signature was induced by fraud. In the face of evidence to the effect that Felix Munyaradzi was fraudulently misled by Muyambo into signing the agreements on the belief that payment had been tendered, the court found this ground of appeal to be meritless. 18. As aforementioned, the fourth ground of appeal was held to have pertained to the appeal on sentence and therefore struck off. The fifth ground, alleged inconsistencies in the evidence of the complainant (Felix Munyaradzi) and the external auditor (Brian Sedze). The court a quo found that the inconsistencies were just a matter of detail and not fact. The court a quo held that it found no material inconsistencies in the evidence of the two witnesses. The court a quo found that, although the auditor mentioned other persons who participated in the preparatory process leading to the allocation of the stands, he did not lead evidence on their involvement in identifying which stand was available for allocation and how the consideration was to be paid. This was the purview of Muyambo. Resultantly, the court a quo found that there were no material inconsistencies in the evidence of the two witnesses and found the fifth ground of appeal to be of no substance. 8Judgment No. SC 45/26Civil Appeal No. SC 766/25 19. The last ground of appeal was predicated on the assertion that the trial court misdirected itself in convicting the appellant on the charge of fraud based on an audit report, yet the auditor conducted an internal system review and not an audit. The court a quo found that this was an attack not on the substance of the reasoning of the court a quo but on the semantics thereof. The court a quo referred to the findings of the trial court, wherein it determined that Brian Sedze was a qualified auditor who undertook an investigation which unearthed anomalies upon which the charge of fraud was predicated. In that regard, the court a quo found that, whether one calls the process an internal review process or an audit, it does not affect the substance of the findings made. Consequently, the court a quo found the sixth ground of appeal to be meritless, and dismissed the appeal in its entirety. 20. Dissatisfied with that outcome, the appellant noted the present appeal on the following grounds. GROUNDS OF APPEAL “Ad conviction 1. The court a quo grossly erred at law and grossly misdirected itself by confirming appellant’s conviction in circumstances where the State had failed to prove, beyond reasonable doubt, that the appellant was involved in the alleged editing of the purportedly genuine agreements of sale to unlawfully take commonage stands for his personal use or for the purposes of selling same to third parties. 2. The court a quo erred at law and grossly misdirected itself by confirming the appellant’s conviction in circumstances where the trier of fact failed to appreciate that it was effectively faced with single witness evidence of the complainant, Felix 9Judgment No. SC 45/26Civil Appeal No. SC 766/25 Munyaradzi, regards whether or not he was misrepresented to for him to sign the various offending agreements of sale resulting in its failing to analyse the evidence appropriately through exercising caution given the dangers of reconstruction of evidence after the event and bias. 3. The court a quo grossly erred and grossly misdirected itself by confirming the appellant’s conviction as charged in circumstances where the charge did not properly set out the essential particulars of fraud as codified particularly the alleged fraudulent misrepresentation upon which the complainant allegedly acted upon to its prejudice. 4. The court a quo grossly erred and grossly misdirected itself by erroneously confirming the appellant’s conviction based on the doctrine of common purpose in circumstances where the doctrine was not expressly related to in the judgment of the trier of fact, but same was misapplied to implicate the appellant in the absence of any iota of evidence incriminating him to the alleged fraud on that basis. 5. The court a quo grossly erred and misdirected itself at law by failing to appreciate that the trial court had improperly, uncritically and blindly relied on the alleged internal review findings which were inadmissible evidence in the absence of the production of the source documentation which included the purportedly genuine agreements of sale and the allegedly edited fraudulent ones from which the auditor allegedly derived or extracted tertiary evidence regarding the alleged fraud. 6. The court a quo grossly erred and misdirected itself in dismissing the appellant’s appeal a quo in circumstances where it was clear that the trial court convicted him on the basis that he failed to win the faith of the bench yet his defence was plausible, reasonably possibly true, had been sustained during the trial and had not been disproved by the 10Judgment No. SC 45/26Civil Appeal No. SC 766/25 State considering the absence of the primary incriminating documentary evidence coalescing into proof beyond a reasonable doubt against the appellant. The appellant prayed for the following relief: 1. That the appeal be and is hereby allowed. 2. The appellant’s conviction in HCHCR 3127/24 be and is hereby set aside. 3. The judgment of the court a quo confirming the appellant’s conviction be and is hereby set aside and substituted with the following: - (a) The appeal against conviction succeeds. (b) The judgment of the appeal court a quo under HCHCR 3127/24 is set aside, and, in its place, the following is substituted: “The 3rd accused, Saymore Mutakura, be and is hereby found not guilty and acquitted.”” SUBMISSIONS BEFORE THIS COURT 21. Mr Sithole, for the appellant, submitted that the alleged edited agreements were not produced as exhibits which meant that there was no nexus linking the appellant to the crime. Counsel further submitted that the alleged facts could not sustain the charge of fraud which had been brought against the appellant. He further submitted that the appellant never edited any agreements of sale and this meant the appellant did not misrepresent anything to the complainant company. It was counsel’s argument that there was no proof of connivance between the appellant and the other accused persons. Counsel concluded by submitting that the State failed to prove its case beyond a reasonable doubt and as such, the conviction could not be sustained, and prayed for the success of the appeal. 11Judgment No. SC 45/26Civil Appeal No. SC 766/25 22. Per contra, Ms Kachidza, for the respondent, submitted that the charge was clear and that the facts proved sustained the fraud charge against the appellant. She further argued that the wording of the charge alleged that all the accused persons were acting in concert when they defrauded the complainant. Counsel for the respondent submitted that the State outline, the charge sheet and the evidence indicated connivance by the accused persons acting to defraud the complainant. Ms Kachidza concluded by praying that the appeal be dismissed. 23. In reply, Mr Sithole submitted that the doctrine of common purpose requires the State to prove knowledge of all accused persons involved and, in casu, the State failed to prove such knowledge on the part of the appellant. Thus, the prayer for the appeal to be allowed. ISSUES FOR DETERMINATION Based on the foregoing I find that the issues requiring determination are as follows; 1. Whether or not the court a quo erred in upholding the appellant’s conviction on the charge of fraud as defined by s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. 2. Whether or not the court a quo erred by confirming the reliance on single witness evidence regarding the alleged misrepresentation. 3. Whether or not the court a quo erred in upholding the appellant’s conviction based on the doctrine of common purpose 4. Whether the court a quo erred by relying on the internal review findings, and subsequently upholding the appellant’s conviction on the basis that he failed to win the faith of the bench. ANALYSIS 12Judgment No. SC 45/26Civil Appeal No. SC 766/25 I now Advert to each of the above issues. Whether or not the court a quo erred in upholding the appellant’s conviction on the charge of fraud as defined by s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. 24. The appellant contends that his conviction is unsustainable on the basis that the State failed to prove the essential elements of fraud beyond a reasonable doubt. The crime of fraud is provided for by s 136 of the Code. This section provides as follows: “136 Fraud Any person who makes a misrepresentation – (a) intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and (b) intending to cause another person to act on the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her; shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person, and be liable to – (i) a fine not exceeding level fourteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or (ii) imprisonment for a period not exceeding thirty-five years; or both.” 25. This Court, in Tangwena & Anor v The State SC 75-21 explained the import of s 136 of the Code as follows: “In plain layman’s language, fraud may however be defined as dishonestly making a false misrepresentation with the intention to cause actual or potential prejudice to another person. The intention of the legislature in s 136 of the Act was to proscribe and punish theft by deceitful means. In the context of the statutory definition of fraud, its essential elements may be paraphrased as follows: 1. Making a misrepresentation to another person. 2. With the intention to cause another person to act on the misrepresentation to the actual or potential prejudice of any person.” 13Judgment No. SC 45/26Civil Appeal No. SC 766/25 26. Section 136 requires the State to establish, beyond a reasonable doubt, the existence of a misrepresentation made with intent to deceive, which causes actual or potential prejudice. Fraud entails a wilful perversion of the truth with intent to defraud, which is prejudicial to another. See S v Ostilly & Ors 1977 (4) SA 699 (D). 27. A careful examination of the record shows that the court a quo correctly found that these elements were satisfied. The evidence established that the appellant participated in a scheme through which residential stands were unlawfully acquired on the basis of falsified barter agreements that referred to vehicle deliveries that never occurred. These representations were materially false and were designed to induce the complainant entity to allocate stands it would otherwise not have released. 28. In R v Nel, 1952 (4) SA 535 (T), the court said: “But fraud can, I think, be committed though the statement is made to a person other than an agent It seems to me that whatever the relationship between the person to․ whom the misrepresentation is made and the person who is prejudiced, if it can be proved that the prejudice was designed in the statement which was made, and came about or was likely to come about, then there is fraud.” 29. The appellant’s first ground asserts that the court a quo grossly misdirected itself by confirming the conviction when the State had failed to prove beyond a reasonable doubt that the appellant was personally involved in editing the Agreements of Sale to unlawfully appropriate commonage stands. This contention misinterprets the nature of liability for fraud under s 136 of the Criminal Law Code, particularly in the context of a concerted scheme. The offence of fraud is not contingent upon the accused personally drafting or altering the fraudulent instrument. Rather, it is established by proof of a misrepresentation made with the 14Judgment No. SC 45/26Civil Appeal No. SC 766/25 intention to deceive and cause prejudice. As explained in R v Nel supra, the misrepresentation need not be made directly to the ultimate victim; it suffices that it was designed to be acted upon and resulted in prejudice. In this case, the State’s evidence demonstrated a coordinated scheme in which Muyambo, the inside man, exploited his position to generate and process fraudulent agreements of sale that reflected fictitious vehicle deliveries which agreements he then submitted for signature by the complainant’s CEO. In other words, Muyambo, acting on behalf of appellant and Kagona, misrepresented to Felix Muyaradzi that the agreements presented were above board. 30. The appellant, a car dealer, was the intended beneficiary and an active participant who received and subsequently sold the fraudulently acquired stands, including commonage stands. The appellant personally benefited from these stands and sold some of them for cash to third parties. We are satisfied that the court a quo correctly found that the State managed to prove that the appellant benefited from the stands to the prejudice of the complainant. The appellant was well aware that for the stands he and Kagona were receiving, no corresponding motor vehicles had been remitted to the complainant as payment. The audit evidence was pivotal, objectively showing that a single vehicle was repeatedly represented as consideration for multiple stands, a practical impossibility that exposed the fraudulence of the transactions. This pattern, coupled with the appellant’s commercial role and the on-selling of stands for profit, placed him at the heart of the fraudulent enterprise. 31. Consequently, the appellant’s direct involvement in the physical editing of documents is not a requisite element of the crime. His intentional participation in the overall scheme, by receiving and disposing of property he knew was acquired through false representations, 15Judgment No. SC 45/26Civil Appeal No. SC 766/25 renders him liable as a co-perpetrator. The court a quo correctly applied the principles of common purpose (s 196A of the Code) and fraud, finding that the appellant’s actions were integral to the deceptive conduct that caused actual prejudice to Delatfin. Therefore, on this basis, we are of the view that the first ground of appeal has no merit. Whether or not the court a quo erred by relying on single witness evidence regarding the alleged misrepresentation. 32. The appellant has also challenged the court a quo’s reliance on the evidence of a single witness regarding whether or not there was a misrepresentation which caused the CEO of Delatfin to sign the contentious agreements of sale. It is imperative to look at s 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] to fully comprehend the import and admissibility of single witness evidence. The provision reads: “Sufficiency of one witness in criminal cases, except perjury and treason. It shall be lawful for the court by which any person prosecuted for any offence is tried to convict such person of any offence alleged against him in the indictment, summons or charge under trial on the single evidence of any competent and credible witness: Provided that it shall not be competent for any court— (a) to convict any person of perjury on the evidence of any one witness as to the falsity of any statement made by the accused unless, in addition to and independently of the testimony of such witness, some other competent and credible evidence as to the falsity of such statement is given to such court; (b) to convict any person of treason, except upon the evidence of two witnesses where one overt act is charged in the indictment or, where two or more such overt acts are so charged, upon the evidence of one witness to each such overt act; (c) to convict any person on the single evidence of any witness of an offence in respect of which provision to the contrary is made by any enactment.” 16Judgment No. SC 45/26Civil Appeal No. SC 766/25 33. This section provides that it is lawful for a court to convict any person for any criminal offence on the single evidence of a competent and credible witness, except for the crimes of perjury and treason or any offence in respect of which provision to the contrary is made by any enactment. Put differently, for crimes other than perjury and treason, the court may convict an accused on the basis of the uncorroborated evidence of a single competent and credible witness. The law relating to a single witness was set out way back in R v Mokoena 1932 O.P.D. 79, quoted with approval in R v Mokoena 1956 (3) SA 81 (A) at p 85. In our own jurisdiction, the case of Bakari v Total Zimbabwe (Pvt) Ltd SC 21/19 at p 11, referred to the latter case of R v Mokoena as follows: “The law relating to a single witness was set out in R v Mokoena 1956 (3) SA 81 (A) at 85-86. It was held that: ‘The uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would…..However, in the latter case of S v Sauls & Ors 1981 (3) SA 172 (A) the Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh his evidence and consider its merits and demerits. It must then decide whether it is satisfied that it is truthful, despite any shortcomings, defects or contradictions in that testimony. The approach adopted in the Sauls case was followed in the case of Nyabvure S- 23-88. See also Worswick v State S-27-88, S v Mukonda HH-15-87, S v Nemachera S-89-86 and S v Corbett 1990(1) ZLR 205 (S).’” 34. It is settled that the evidence of a single competent and credible witness may sustain a conviction, provided it is treated with caution. The record reflects that the trial court, in a well- reasoned judgment, was alive to this requirement and devoted part of its judgment in assessing the credibility of the witnesses including the appellant. It gave detailed reasons why it accepted the evidence of the CEO, Felix Munyaradzi and found him to be a credible witness. 17Judgment No. SC 45/26Civil Appeal No. SC 766/25 It also found that his testimony was corroborated by documentary and circumstantial evidence. It is important to observe that, despite the appellant’s concern regarding the trial court’s reliance on the evidence of Felix Munyaradzi, there is no ground of appeal, both in this Court and the court a quo attacking the trial court’s findings on the credibility of the Felix Munyaradzi. Whether or not the court a quo erred in upholding the appellant’s conviction based on the doctrine of common purpose. 35. It is also important to note that the court a quo was not asked to enquire into whether the doctrine of common purpose was properly found to have been established in the trial court. There was no ground of appeal before the court a quo taking issue with that. However, arguments were heard on the issue from both counsel. 36. Regarding the doctrine of common purpose, s 196A of the Code permits the conviction of co- perpetrators where the State proves the requisite mens rea and concerted action. Section 196A provides as follows: “196A. Liability of co-perpetrators. (1) If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator. (2) The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they— 18Judgment No. SC 45/26Civil Appeal No. SC 766/25 (a) were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or (b) were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or (c) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged. (3) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.” 37. A literal interpretation of the above provision is that if two or more persons act together in committing a crime and have the requisite mental state, they can be found liable as co- perpetrators. 38. In the case of Tombe v The State SC 41/25 at p 8, this Court in explaining the test to be used to ascertain the mental state of a co-perpetrator, stated as follows: “Therefore, if two or more persons act in association to commit a crime, they can be convicted as co-perpetrators, provided that the State adduces evidence proving their mens rea. This mental state can be established in three ways: 1. Intent – where the accused deliberately sought to commit the offence 2. Knowledge – where the accused was aware that the offence would be committed. 3. Recklessness – where the accused realized there was a real risk or possibility that the offence would be committed but proceeded with his or her conduct regardless.” 39. In casu , the evidence demonstrated that the appellant acted in association with others in preparatory and executory conduct leading to the commission of the fraud. If the appellant did not deliberately seek to commit the offence, he must have realised that there was a real risk or 19Judgment No. SC 45/26Civil Appeal No. SC 766/25 possibility that the offence would be committed but proceeded with his conduct regardless. By receiving stands from Delatfin and not remitting payment back to it, he ought to have perceived a real risk or possibility that fraud would be committed. 40. The trial court, after analysing the evidence and making findings on the credibility of the witnesses, found that there was sufficient proof that the appellant and his co-accused, acting in common purpose, connived to defraud Delatfin of the stands in question. It had therefore been proven that they had all participated in concert in the fraudulent scheme. As already stated, that finding was not challenged before the court a quo and the court cannot be blamed for not considering that issue Whether the court a quo erred by relying on the internal review findings despite the non- production of the source documents. 41. Again, the court a quo was not asked and did not engage this issue. What it was asked to grapple with was whether the trial court ‘misdirected itself in convicting the appellant on a charge of fraud basing on an “audit report” yet Brian Sedze was clear that he never conducted an audit but an Internal Systems Review.’ The court a quo’s response which was brief, to the point and correct in the Court/s view was that: “This is an attack not on the substance of the reason but on the semantics thereof. The Learned Magistrate in his reply to this ground of appeal, record 5b, adequately responded to the issue raised. What is of substance is that Brian Sedze, a qualified auditor, undertook an investigation which unearthed the anomalies upon which the charge of fraud is predicated. Whether one calls that process or investigation an audit or internal review process does not affect the substance of the findings made.” 42. In any event, the audit evidence was not the sole basis of the conviction but merely corroborative of the broader factual matrix. 20Judgment No. SC 45/26Civil Appeal No. SC 766/25 Whether the court a quo erred in upholding the appellant’s conviction on the basis that he failed to win the faith of the bench when his defence was reasonably possibly true in view of the failure to produce the primary source documents. 43. The appellant’s final contention is that the trial court convicted him on the basis that he failed to win the faith of the bench yet his defence was plausible. In the case of S v Makanyanga 1996 (2) ZLR 231 (H) at 235 E-F, the court stated that: “Whilst it is axiomatic that a conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of a criminal complaint, still, the fact that such credence is given to testimony for the State does not mean that conviction must necessarily ensue. This follows irresistibly from the truth that the mere failure of an accused person to win the faith of the bench does not disqualify him from an acquittal. Proof beyond a reasonable doubt demands more than that a complainant should be believed and the accused disbelieved. It demands that a defence succeed wherever it appears reasonably possible that it might be true.” 44. In S v Makanyanga supra, the court emphasised that proof beyond a reasonable doubt requires more than believing the complainant and disbelieving the accused, and that an accused is entitled to an acquittal wherever his defence is reasonably possibly true. In the present matter, the record shows that the appellant was not convicted merely for failing to “win the faith of the bench” as he alleges. Rather, the trial court properly applied the principles in Makanyanga supra and went to great lengths in evaluating the appellant’s defence and rejecting it only after finding that it was contradicted by objective evidence, unsupported by any documentation, and inherently improbable. The rejection of the defence was therefore based on its lack of plausibility and not on demeanour or credibility alone. The conviction accords with the principles a court should consider in convicting an accused of a crime. It is on this basis the Court held the view that the court a quo did not err in upholding the conviction. DISPOSITION 21Judgment No. SC 45/26Civil Appeal No. SC 766/25 45. Having regard to the totality of the evidence and the applicable legal principles, the court a quo properly found that the State proved all the essential elements of fraud beyond a reasonable doubt against the appellant. The application of the doctrine of common purpose was justified, the evidentiary findings were sound and no material misdirection has been shown. Accordingly, the appeal lacked merit hence its dismissal. MAVANGIRA JA : I agree MWAYERA JA : I agree Rubaya & Chatambudza, appellant’s legal practitioners. National Prosecuting Authority, respondent’s legal practitioners.