Online Reporter
Chief Court Reporter
The High Court has acquitted a former till operator of two fraud counts after finding weaknesses in the prosecution’s audit evidence, but upheld her conviction on a third count involving an attempted fraudulent transaction.
This reduced her effective prison sentence to a wholly suspended term, but with community service.
Justice Phildah Muzofa and Justice Catherene Bachi-Mzawazi partially upheld an appeal by Margaret Chagwiza against both conviction and sentence.
Chagwiza had been convicted by a lower court on three counts of fraud under Section 136 of the Criminal Law Code and was sentenced to 60 months’ imprisonment, with 24 months suspended, leaving an effective 36-month jail term.
The State alleged that while employed as a till operator at Veterinary Distributors in Chinhoyi, Chagwiza falsely represented that customers had successfully paid for goods through point-of-sale (POS) transactions when, in fact, the payments had been declined.
She allegedly generated invoices enabling customers to collect goods, exposing her employer to actual and potential losses.
The fraud came to light on June 20, last year, when Chagwiza’s supervisor, Simbarashe, observed her serving a customer whose card transaction had been declined.
Despite the failed payment, she had already generated an invoice for the release of goods worth US$1 451. The goods were intercepted before collection.
On appeal, Chagwiza argued that the company’s payment system was chaotic, adding that other cashiers used her POS machine. She also argued that the trial court had improperly relied on a declined transaction receipt that was never produced as evidence.
The State conceded the appeal in respect of the first and second counts, acknowledging shortcomings in the internal audit report that formed the basis of those charges.
In its judgment, the High Court found that the evidence relating to the third count was overwhelming.
The court held that direct testimony from the supervisor, corroborated by other witnesses and aspects of Chagwiza’s own evidence, established that the payment had been declined and that she nevertheless generated an invoice for the customer to obtain goods.
Justice Muzofa said it was common cause that Chagwiza had served the customer, that the transaction was not honoured, and that the customer was about to collect goods before the process was stopped by the supervisor.
The court ruled that even if the declined receipt had not been formally produced, there was sufficient evidence proving the attempted fraud beyond reasonable doubt.
However, regarding the first and second counts, the judges found that the prosecution had failed to eliminate reasonable doubt.
The court noted that although the audit linked the disputed transactions to Chagwiza’s POS machine, critical bank records were missing and the State failed to prove where the funds should have been remitted.
The judges found that uncertainties surrounding the company’s multiple bank accounts and payment systems created doubt that had to be resolved in the appellant’s favour.
As a result, the court set aside the convictions and sentences on counts one and two and substituted them with verdicts of not guilty.
Turning to the sentence, the High Court held that the original custodial sentence was no longer appropriate given that only one count remained and no actual financial loss had been suffered as the transaction was intercepted before goods were released.
The court noted that Chagwiza was a first offender, was pregnant at the time of sentencing, and fell within a special category of offenders recognised under the Sentencing Guidelines.
While acknowledging that she had abused a position of trust and that the offence involved planning, the court concluded that rehabilitation rather than retribution should be the dominant sentencing objective.
The court substituted the original sentence with 12 months’ imprisonment, half of which was suspended for five years on condition of good behaviour.
The remaining six months were suspended on condition that Chagwiza performs community service.
The matter was remitted to the trial court for placement on a community service programme.
