Online Reporter
Peter Matika [email protected]
A Bulawayo man convicted of fraud and sentenced to an effective three-year prison term has approached the High Court, seeking to overturn both his conviction and sentence.
He argues that he was the rightful owner of a disputed property in Emganwini, which lies at the centre of the case.
Isaiah Ncube, who was convicted by the Tredgold Regional Magistrates Court on fraud charges, has filed an appeal before the High Court. He contends that the trial court erred in finding that the State had proved its case beyond a reasonable doubt.
According to court papers, Ncube was convicted of fraud as defined under Section 136 (1) (a) of the Criminal Law (Codification and Reform) Act. The charge stemmed from allegations that he misrepresented ownership of a house in Emganwini, Bulawayo, and sold it to the complainant, Ms Virginia Dube.
The complainant is said to have paid US$10 000 towards the purchase of the property after being led to believe that Ncube was the lawful owner.
In his appeal, Ncube argues that he acquired the stand and registered it in the name of another individual, Ms Stella
Bafana, in order to circumvent Bulawayo City Council by-laws that prohibit a person from owning more than one residential stand.
He maintains that he exercised ownership rights over the property, including paying rates and letting out the premises. On that basis, he argues that he did not misrepresent himself when entering into the sale agreement with the complainant.
Ncube further claims that the trial court failed to properly consider evidence supporting his version of events. He also argues that the court erred in concluding that the offence had been committed in aggravating circumstances.
He additionally contends that the magistrate did not adequately take into account restitution made to the complainant prior to sentencing.
However, the National Prosecuting Authority (NPA) has opposed the appeal, maintaining that both the conviction and sentence were justified and supported by strong evidence.
In the State’s heads of argument, Mr Kudakwashe Jaravaza said the essential elements of fraud had been proven beyond a reasonable doubt.
“The court did not err in finding the appellant guilty as all the essential elements of fraud were proven,” said Mr Jaravaza.
The State argued that evidence presented during the trial showed that the property legally belonged to Ms Stella Bafana, who had acquired it through lawful allocation from the local authority.
Court records indicate that Ms Dube responded to an advertisement for the sale of the property in 2017 and went on to pay US$10 000 after being assured by Ncube that he owned the house.
The State further submitted that, despite receiving payment, Ncube failed to transfer occupation of the property because he was not the lawful owner.
Mr Jaravaza said documentary evidence presented during the trial clearly showed that ownership vested in Ms Bafana and not the appellant.
“It was purely criminal for the appellant to have sold the stand to the complainant without the authority of the lawful owner,” he submitted.
The State also dismissed Ncube’s claim that he used Ms Bafana’s details merely to bypass council regulations, arguing that he had failed to provide credible proof that he was the true owner of the property.
On sentencing, the NPA argued that the trial court had properly exercised its discretion and had taken into account all relevant mitigating factors, including restitution.
Mr Jaravaza pointed out that, although the complainant was eventually compensated, the repayment came several years after the offence had been committed.
“The complainant was defrauded of monies that belonged to her husband’s estate sometime in 2017, only to be restituted in 2024. A good eight years had passed,” he said.
He submitted that the circumstances of the case justified a custodial sentence, despite the later restitution.
Mr Jaravaza also noted that victim impact statements do not determine the sentence imposed by a court, even where the complainant prefers a non-custodial penalty.
“The sentencing discretion ultimately lay with the sentencing court,” he submitted.
The High Court is now expected to determine whether the conviction and sentence should stand or whether the appeal has merit.
The case is likely to draw significant public interest, as it touches on property ownership disputes, fraudulent property transactions and the legal consequences of attempting to bypass local authority regulations governing land ownership.
derick.khumalo