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 coaccused 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 coaccused.

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