Ncube v S (HCBCR 1442/26) [2026] ZWBHC 117 (28 August 2026)

1 HB 123//26 HCBCR 1442/26 ISAIAH NCUBE versus THE STATE HIGH COURT OF ZIMBABWE MUTEVEDZI AND NDLOVU JJ BULAWAYO, 4 June 2026 & 28 August 2026 Criminal Appeal T. Chimedza, for appellant K. Jaravaza, for respondent MUTEVEDZI J: Fraudsters who sell houses that do not belong to them appear to be becoming more daring with each passing day. This matter came before this Court as an appeal against the conviction and sentence imposed by the Bulawayo Regional Magistrates’ Court sitting at Bulawayo on 17 March 2026. Having heard submissions from the parties, we were unanimously of the view that the appeal was devoid of merit and, in an ex tempore judgment, dismissed it in its entirety. The appellant has since requested our full reasons for that decision. These are the reasons. Factual background [1] The appellant appeared before the regional magistrates’ court at Bulawayo on a charge of fraud in contravention of section 136(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”). It was alleged that on 4 August 2017, at House No. 7234, Nketa, Bulawayo, Isaiah Ncube (“the appellant”), with intent to defraud, or at the very least realising the real risk that Virginia Dube (“the complainant”) might act upon his misrepresentation to her prejudice, falsely represented to her that he was the owner of House No. 5105, Emganwini, and that the property was available for sale for US$14 000. Acting on this misrepresentation, the complainant paid the appellant US$9 000 and $1 000 in bond notes. [2] The background facts are that sometime in August 2017, the complainant saw an advertisement in the Chronicle newspaper stating that House No. 5105, Emganwini, Bulawayo, was for sale at US$14 000. She became interested and contacted the advertiser, who accompanied her to view the 2 HB 123//26 HCBCR 1442/26 property. Thereafter, the complainant met the seller (the appellant) at his residence. The appellant introduced himself as the property's owner. The parties subsequently agreed on the sale and purchase price. They prepared and signed an agreement of sale in the presence of their respective witnesses. Thereafter, the appellant instructed the complainant to deposit US$9 000 into account number XXX held at MBCA Bank in the name of Lenon Mukhwano. She did so, only to realise later that she had been duped. She reported the matter to the police, resulting in the appellant being charged with fraud. [3] At his trial in the court a quo, the appellant pleaded not guilty. In his defence, he denied any knowledge of the Chronicle advertisement. He told the court a quo that sometime in 2017, Charles Mawere (“the agent”) approached him in the company of the complainant, who had expressed an interest in the property. The agent knew he was the true owner of the property. He explained that although the property was registered in the name of Stella Bafana, he had purchased it in her name to circumvent Bulawayo City Council by-laws that prohibited a person from acquiring more than one property. The appellant admitted that he sold the property to the complainant and received US$9 000, which he deposited into the bank account held in his nephew’s name. He also admitted that he directed the complainant to use that account for payment. However, he maintained that the complainant failed to pay the balance of the purchase price, resulting in the cancellation of the agreement of sale. He further alleged that Stella Bafana was being vindictive in asserting ownership of the property when the house belonged to him. He concluded by stating that he was refunding the complainant the money she had paid. Proceedings in the court a quo The State case [4] The State, with the appellant’s consent, tendered into evidence a document relating to the sale of Stand No. 5109, Emganwini. It also called the testimony of various witnesses, through which the court aquo concluded that the State had proved its case beyond reasonable doubt. We restate part of that evidence very briefly, not for the purpose of showing the correctness of the conviction, because the appeal against conviction was abandoned at the hearing, but for the purpose of showing the careful planning and determination of the appellant in selling a property that belonged to 3 HB 123//26 HCBCR 1442/26 another. Virginia Dube (“the complainant”)’s testimony was that, sometime in 2017, she responded to a newspaper advertisement offering House No. 5105, Emganwini, Bulawayo, for sale. She contacted the agent, who accompanied her to meet the appellant. The appellant represented himself as the owner of the property, and the parties agreed on a purchase price of US$14 000. She paid US$9 000 in cash and another 1 000 in bond notes. They agreed that the balance of US$5 000 would be paid upon occupation of the property. The complainant further said that on 4 August 2017, after making the initial payment, she proceeded to the appellant’s residence at House No. 7234, Nketa 9, Bulawayo. She later visited the property and observed that renovations were underway. She said she also discovered that new occupants occupied the property and advised her that they were the rightful owners. When she confronted the appellant, he became evasive. His telephone number subsequently became unreachable, and he ceased cooperating with her. [5] Stella Bafana (“Bafana”) testified that she was the lawful owner of Stand No. 5105, Emganwini, which she acquired from Bulawayo City Council in 2010. She stated that the property was of considerable personal importance to her and that she had never intended to dispose of it. She categorically denied having granted the appellant any power of attorney or authority to sell or otherwise deal with the property on her behalf. She further explained that she had engaged the appellant to construct a house on the stand and that, during their dealings, the appellant had on several occasions attempted to sell the house to third parties. She denied the appellant's assertion that he had used her name merely to circumvent the Bulawayo City Council waiting-list requirements, or that she had permitted him to transact in her name. She explained that although the appellant had made certain payments directly to the City Council, this was because the stand he had initially sold to her was encumbered. Those payments, she maintained, did not confer any proprietary rights upon the appellant or authorise him to sell the property. Bafana further testified that the City Council's records confirmed her ownership of Stand No. 5105 and that she had fully discharged her obligations in respect of the property. She emphasised that she did not owe the appellant anything in relation to the stand. She maintained that she had neither sold the property to anyone, including the complainant, nor authorised the appellant to do so. 4 HB 123//26 HCBCR 1442/26 The defence case [6] The appellant made several material concessions. He admitted that Stand No. 5105, Emganwini, was registered in Stella Bafana's name, and that he had sold the property to the complainant. He alleged that his dealings with the complainant stemmed from their amorous relationship, which became acrimonious after she discovered he was dating another woman. That misunderstanding prompted the complainant to report the matter to the police. He was adamant that the property belonged to him, even though it was registered in Stella Bafana's name. To him, the dispute resulted from the breakdown of his relationship with the complainant rather than an act of fraud. [7] Simabuhle Mguni also gave evidence for the defence, but her evidence was not material for sentencing purposes. Lucky Vundla testified that he had represented the appellant in separate fraud matters in 2021. The witness categorically denied receiving any power of attorney from the appellant. His testimony was therefore relevant to rebut the appellant’s suggestion that he had authorised Vundla to act on his behalf in relation to the disputed property transactions. James Axel Dhliwayo was another defence witness who had previously represented the appellant in matters involving more than twenty counts of fraud. He clarified that his legal practice had never worked with Lucky Vundla, who is a paralegal, and firmly denied possessing any documents which the appellant alleged he had, contrary to the appellant’s assertion. His evidence was principally intended to distance his professional practice from the claims advanced by the appellant. Importantly, both witnesses’ testimony, which cast serious aspersions on the appellant’s character and completely undermined his submissions in mitigation, was called not by the State but by the appellant himself. Findings of the court a quo [8] The court a quo convicted the appellant of fraud after finding that the evidence overwhelmingly established that the property in question belonged to Stella Bafana; that the appellant had no lawful authority to dispose of it; and that, when he sold it, he intended to defraud the complainant. In determining an appropriate sentence, the court considered both the mitigating and aggravating 5 HB 123//26 HCBCR 1442/26 circumstances. On the one hand, it considered the appellant’s age of 57 years, his marital status and his responsibility for twelve children as mitigating his blameworthiness. On the other hand, it found the aggravating features to be considerably heavier than the mitigation. These included the emotional distress and protracted legal difficulties occasioned to Stella Bafana, the appellant’s lack of remorse, his disruptive conduct during the trial, and the manner in which he sought to effect restitution. In particular, the court a quo found that the appellant’s bid to restitute the complainant was not driven by a genuine desire to pay reparations but came only after he realised he had been cornered. It said he had deliberately delayed repayment until midway through the proceedings and on the eve of judgment. The court accordingly concluded that the appellant’s conduct was calculated and manipulative rather than indicative of genuine contrition. It consequently sentenced him to four years’ imprisonment, of which one year was suspended for five years on condition of good future behaviour, leaving him to serve an effective three years’ imprisonment. Proceedings before this Court [9] Aggrieved by both his conviction and his sentence, the appellant noted an appeal against the judgment of the court a quo. He relied on the following grounds: “GROUNDS OF APPEAL 1. A fortiori, the court a quo grossly misdirected by making a finding that the state had proven its case beyond reasonable doubt yet evidence on the record does not show so. 2. A fortiori, the court a quo misdirected itself in making a finding that the appellant's version was not true yet the evidence on the record indicate that the appellant's version was reasonably possibly true. AD SENTENCE 3. The court a quo grossly erred at law and fact when it held that the offence was committed in aggravating circumstances. 4. The court a quo grossly misdirected itself at law and at fact when it failed to consider that the Appellant had fully restituted the complainant prior to his sentencing. RELIEF SOUGHT WHEREFORE, Appellant prays for the setting aside of the whole judgement of the court a quo and that it be substituted with the following: 1. The appeal succeeds. 2. The judgement of the court a quo is set aside and substituted with the following:- 'The Appellant is found not guilty and is acquitted'. Alternatively, 3. If the court finds the conviction to be proper, the Appellant prays that the sentence of the court a quo be set aside and be substituted with a non-custodial sentence of a level 6 fine or 200 hours community service at Tredgold Building Magistrate Court.” 6 HB 123//26 HCBCR 1442/26 Issues for determination [10] At the hearing of the appeal, Mr Chimedza, who appeared for the appellant, quickly realised the meaninglessness and futility of the grounds against conviction. He abandoned both of them. The hearing therefore proceeded solely on the sentence. In our view, the issues for determination are whether the court a quo erred in concluding that this was an aggravated fraud and that the appellant’s so-called efforts to restore the complainant were intended to pull wool over the court’s eyes. The law [11]The sentencing provisions for the offence of fraud is set out in s 136 of the Code, which provides as follows: “… shall be guilty of fraud if the misrepresentation causes prejudice to another person or creates a real risk of possibility that another person might be prejudiced, 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. [12] In this jurisdiction, sentencing is largely a matter for the trial court. Zimbabwe does not use the tariff system. As such, sentences, even for similarly placed offenders, are not rigidly the same. For an aggrieved offender to successfully challenge a sentence imposed on them, they must demonstrate that the trial magistrate based the sentence on incorrect factual findings, ignored important mitigating factors, or overemphasised aggravating features; that the court failed to follow proper sentencing procedures, such as failing to conduct a proper pre-sentence inquiry or to consider a non-custodial option like community service when it was legally required to; that it imposed an illegal sentence; that it acted on a wrong principle or allowed extraneous factors to influence the punishment; or, ultimately, that the sentence imposed induces a sense of shock. [13] In this case, there is no argument that the sentence imposed falls within the trial court’s discretion. Having heard the evidence, observed the offender, and appreciated the circumstances surrounding the commission of the offence, the trial court is ordinarily best placed to determine the 7 HB 123//26 HCBCR 1442/26 appropriate sentence. An appellate court will not lightly interfere with the sentence imposed by a trial court merely because it might have imposed a different sentence. Interference is only justified where an appellant demonstrates that the court misdirected itself on one or more of the issues outlined above. Admittedly, the trial court must exercise its discretion judiciously, having regard to the nature and gravity of the offence, the circumstances of its commission, the personal circumstances of the offender, the interests of society, and the applicable sentencing principles. It follows that the question before this Court on appeal is not whether it would have imposed the same sentence, but whether the sentence imposed was arrived at by a proper exercise of the sentencing discretion and falls within the permissible range of sentences. This principle is aptly captured by numerous authorities, including the remarks of MALABA DCJ (as he then was) in Muhomba v The State SC 57-13 at p 9: “On the question of sentencing, it has been said time and again, that sentencing is a matter for the exercise of discretion by the trial court. The appellate court would not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of sentence by the trial court for the appellate court to interfere with the sentence and assess it afresh. The allegation in this case is that the sentence imposed is unduly harsh and induces a sense of shock.” [14] In S v Mkombo HB140-10 at p. 3 it was held that: “The position of our law is that in sentencing a convicted person, the sentencing court has a discretion in assessing an appropriate sentence. That discretion must be exercised judiciously having regard to both the factors in mitigation and aggravation. For an appellate tribunal to interfere with the trial court’s sentencing discretion there should be a misdirection. See S v Chiweshe 1996 (1) ZLR 425 (H) at 429D; S v Ramushu & Ors S-25- 93. It is not enough for the appellant to argue that the sentence imposed is too severe because that alone is not misdirection and the appellate court would not interfere with a sentence merely because it would have come up with a different sentence.” In S v Nhumwa SC40-88 at p 5 it was stated: - “It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is severe than one that the court would have imposed sitting as a court of first instance, this Court will not interfere with the discretion of the sentencing court.” 8 HB 123//26 HCBCR 1442/26 Application of the law to the facts. [15] The contention by the appellant that the trial magistrate misdirected himself in treating the offence as aggravated and failed to attach sufficient weight to the fact that the complainant was ultimately fully restituted cannot be sustained. Upon convicting the appellant of fraud, the court aquo had a discretion to sentence the appellant to up to thirty-five years' imprisonment. It did not. Instead, it settled for 3 years' effective imprisonment. To that extent, therefore, that sentence fell squarely within the sentencing discretion of the court quo, a discretion which cannot be easily interfered with on appeal. Interference is warranted only where the sentencing court misdirected itself in principle or imposed a sentence which is so excessive, or so inappropriate, as to induce a sense of shock. In the present matter, the learned magistrate was alive to the mitigating circumstances. The appellant's age, marital responsibilities and responsibility for twelve children were expressly taken into account. So too was the restitution made to the complainant. The complaint, however, is directed principally at the weight accorded to the restitution. In our view, the timing and circumstances in which it was effected were material considerations which the court a quo was entitled to take into account. [16] It is correct that a trial court cannot simply ignore partial or piecemeal restitution. It is, however, fully entitled to reject it as a manipulative tactic if the evidence before it shows that such restitution is a superficial gesture designed to deceive the court into handing down a lenient sentence. Genuine restitution or an offer to compensate a victim is ordinarily a strong mitigating factor in crimes of dishonesty, such as theft and fraud. But when payments are made in a sporadic, calculated, or "piece-meal" fashion, specifically timed for trial, a judicial officer must closely scrutinise the offender’s true motives. Where a court concludes that the piecemeal and eleventh- hour payments are an insincere manoeuvre intended to "pull wool over the court's eyes” and create a false impression of contrition while avoiding full accountability, the magistrate may give them little to no weight in mitigation. Sentencing remains a balanced assessment of the gravity of the offence, the offender's moral culpability, and public deterrence. Token financial instalments cannot bypass or neutralise this. 9 HB 123//26 HCBCR 1442/26 [17] Here, the appellant did not make restitution at the earliest opportunity. Rather, the complainant endured a prolonged period during which she repeatedly sought the return of her money. Restitution was ultimately made only on the eve of judgment. In such circumstances, the learned magistrate was correct to question whether the repayment was motivated by genuine remorse and a desire to make amends, or was simply calculated to evade the necessary punishment. The learned magistrate found that the latter was what motivated the restitution. We therefore find no misdirection in the court's conclusion that these considerations diminished the weight to be attached to the restitution as a mitigating factor. [18] The approach adopted by the court aquo is consistent with the well-established principle that a sentencing court must balance the case's mitigating and aggravating features. In the oft-cited case of S v Shariwa 2003 (1) ZLR 314 (H), this Court emphasised the need to properly balance competing considerations when determining an appropriate sentence. In the present case, the aggravating features were substantial. The appellant deliberately and persistently misrepresented himself as the owner of a property belonging to Stella Bafana and proceeded to sell it to the complainant. The evidence shows that, before succeeding, he had attempted to do so on several other occasions. From the evidence he placed before the trial court of his own volition, he appears to be a disreputable man. He has previously faced more than twenty other counts of fraud. In S v Blessed Sixpence and others HH567-23, this Court remarked that the probability of an offender reoffending has become an important consideration introduced by the Criminal Procedure (Sentencing Guidelines) Regulations, 2023. That probability can be deduced from a systematic application of known predictive risk factors that indicate whether an offender is predisposed to reoffending. A man who has been arrested more than twenty times for the same kind of crime is not averse to reoffending. That could only have made the appellant’s situation worse. Even then, the complainant faced not only substantial financial prejudice but also prolonged uncertainty and frustration in trying to recover her money. [19] Against that background, we cannot find that the trial court exercised its sentencing discretion improperly, or that the effective sentence of three years' imprisonment was disproportionate to the gravity of the offence. The sentence falls within the range of sentences reasonably open to a court 10 HB 123//26 HCBCR 1442/26 properly directing itself to the relevant considerations. It is therefore not a sentence that can be characterised as manifestly excessive or that induces a sense of shock. The fact that the complainant was ultimately fully restituted, though undoubtedly relevant, does not, in the circumstances of this case, outweigh the aggravating features of the offence or render the custodial sentence inappropriate. The appeal against sentence is therefore without merit and must fail. For these reasons, we ordered that: - a. The appeal is hereby dismissed in its entirety. MUTEVEDZI J………………………………………………….. NDLOVU J……………………………………….I agree Mashayamombe Co & Attorneys for the appellant National Prosecuting Authority for the respondent