Online Reporter
Nyore Madzianike
Senior Reporter
The High Court has reserved judgment in the appeal of a Harare man, Carlton Muduwiwa, a convicted fraudster who was sentenced to six years in prison for swindling a mining company of R444 000 (about US$25 000) in a botched vehicle transaction.
Muduwiwa is seeking to have both his conviction and sentence overturned.
Alternatively, he is requesting that his sentence be reduced by 15 months, with part of it suspended on condition of good behaviour and restitution.
In October 2021, Muduwiwa was convicted by Harare regional magistrate Mr Stanford Mambanje for fraud.
He was initially handed an eight-year sentence, with one year suspended on condition he did not commit another offence involving dishonesty within five years, and another year suspended on condition he made restitution to the complainant, Davure Mining, represented by Masimba Mukarati.
This left him with an effective sentence of six years behind bars.
The fraud charge stemmed from a transaction in which Davure Mining sought to purchase a Toyota Hilux Legend 50 Double Cab, but never received the vehicle after transferring R444 000 into a South African bank account.
Muduwiwa denied the charge during trial, claiming the money was part of an illegal foreign currency exchange deal, not payment for a vehicle.
The trial court, however, found his defence inconsistent and lacking credibility.
Key evidence included bank documents and testimonies which the court found supported the prosecution’s case.
Unhappy with the conviction, Muduwiwa approached the High Court, arguing that the FNB South Africa bank records used in the trial were not authenticated and should not have been admitted into evidence.
He further claimed the trial court failed to consider his explanation that the transaction was a currency exchange deal, not a vehicle sale, and that there was no written agreement proving a car deal existed.
He also disputed the reliability of Mukarati’s testimony, particularly regarding the money deposited into a South African account, arguing that the account holder had not confirmed the transaction.
In response, State counsel Ms Paidamoyo Gutu opposed the appeal.
She argued that Muduwiwa had consented to the admission of the bank documents during the trial, and that the magistrate made no legal error in relying on them.
She also pointed out that the State provided substantial evidence, including the confirmed deposit of funds and the failed delivery of the vehicle.
“A follow-up was made, and the complainant travelled to South Africa. The appellant confirmed this, although he later contradicted himself, saying he had not travelled with the complainant but followed him instead. Clearly, these are afterthoughts,” Ms Gutu said.
She added that it was undisputed the car was never purchased, and that the court was correct in finding that a misrepresentation had occurred, which is central to proving fraud.
“Once the appellant was put to his defence this meant that an answer was required of him since a prima facie case had been proven,” she added.
“Once the State has made out a prima facie case, the accused has a duty to explain or rebut evidence that directly implicates him otherwise adverse inferences may be drawn.”
Ms Gutu said the State had met its evidentiary burden by proving the fund transfer, the verbal agreement and the failure to deliver the car, all of which amounted to fraud and resulted in prejudice to the complainant.
“The appellant was convicted on the basis of the evidence advanced by the respondent and the shortcomings of his own defence,” she said.
She argued that Muduwiwa’s appeal had no legal basis, noting that his defence had been riddled with inconsistencies and failed to provide a convincing account of what happened to the funds.
Justices Happias Zhou and Benjamin Chikowero reserved judgment following the appeal hearing.
