S v NEMAPARE 1988 (2) ZLR 430 (SC)

Flynote

Criminal law — Prevention of Corruption Act [Chapter 70] — s 3(1)(f) — agent concealing from principal full nature of transaction carried out in course of agency — purpose of section.

Criminal procedure — evidence — Criminal Procedure and Evidence Act [Chapter 59] — s 262B — admissibility of documents made in the ordinary course of business — statement made by third party forming part of records of business — whether admissible under section to establish truth of what is stated therein by third party.

Criminal procedure (sentence) — senior official of statutory body concealing sale of body's property from his superiors — appropriate sentence.

Headnote

Under s 3(1)(f) of the Prevention of Corruption Act [Chapter 70], * it is an offence for any agent, with intent to deceive his principal or to obtain any gift or consideration for himself, to fail to disclose to his principal the full nature of any transaction carried out in the course of his agency. Section 4 of the Act creates a presumption that the agent acted with that intent if it is proved that he failed to disclose to his principal the full nature of such a transaction. In s 3, the statute seeks to create an offence which falls short of the common law offence of fraud. It may thus be possible for the State to establish an offence under the statute even where all the elements of fraud are not present.

The object of s 262B of the Criminal Procedure and Evidence Act [Chapter 59] is to render admissible as evidence statements of fact recorded by a person in the ordinary course of his trade, business or occupation which may be supposed to be true precisely because they were recorded in the ordinary course of business and not with litigation in mind. The section records of a Government agency and sworn by an accomplice (who refuses to attend court to give oral evidence) in the course of questioning by the staff of that agency, since the facts recorded in the affidavit related to the accomplice's business, not to the business of the Government agency concerned.

The appellant, who was at the time Assistant General Manager of the National Railways of Zimbabwe, had, without informing the Railways Board or the General Manager of the proposed transaction, arranged for the sale of five Railways houses in Botswana at a price of less than one-sixth of their market value. It was clear that he was proposing to cheat the Railways, and thus the public, in order to share in the profits on the resale of the properties. He and the other persons involved stood to gain around 265 000 Botswana Pula. A sentence of three and a half years' imprisonment was held not to be manifestly excessive.