S v MUDZINGWA 1999 (2) ZLR 225 (H)

Flynote

Appeal ” criminal matter ” conviction ” accused having pleaded guilty in lower court ” when may appeal against conviction

Criminal law ” common law crimes ” fraud ” claim of right ” allegation that accused intended to defraud a named complainant ” accused claiming that his intention was to defraud another person ” motive for defrauding that other person was revenge for alleged loss he had caused the accused ” not a claim of right ” not necessary for State to show who D accused intended to defraud

Headnote

The accused had obtained goods from a supplier by making out purchase orders which purported to come from a firm by whom he had previously been employed. The supplier debited the account of the firm in whose name the purchase orders had been made out. The accused had disposed of these goods for his own benefit. When the supplier sought to claim payment from the firm, the fraud came to light.

The accused was charged with three counts of fraud. The charge alleged that he had caused prejudice to the supplier of the goods. He pleaded guilty to the charge and was convicted and sentenced. When pleading he indicated that the firm in which he had previously been employed had failed to pay him some of his terminal benefits and he had made out the purchase orders in this firm's name as a vengeful act for the wrong that this firm had done him. He appealed against both conviction and sentence.

Held, that an appeal against conviction where there has been a plea of guilty will only be entertained where from the words used by the accused in pleading to the charge it is demonstrated that the accused was raising some defence which could legitimately be raised to the charge. In the present case, the appeal was entertained because the accused in the words used when pleading was raising the defence of claim of right.

Held, further, that the defence of claim of right could not succeed on the facts. He had no genuine belief that he had a lawful right to act as he did. He was simply avenging a perceived injustice by stealing from his former employer to recover his loss.

Held, further, that it is immaterial that the accused acted under a misapprehension that he was defrauding his former employer whereas in fact he was defrauding the supplier of the goods. In terms of s 222(d) of the Criminal Procedure and Evidence Act, all that the State has to prove is that the accused intended to defraud someone. The accused intended to defraud someone and he was therefore guilty as charged.