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Herald Reporter
The High Court has allowed the appeal by comedienne Felistus Murata, known as Mai TT, against conviction and sentence on theft charges and, as she has served the other part of her jail sentence for skipping community service eight years ago, she has been released.
She was serving an effective sentence of nine months, three months for not reporting for community service in 2015 as a result of a conviction for domestic violence, and an effective six months for theft of trust property for using a hired car as collateral for a loan.
She had been sentenced in the middle of June for 12 months on the theft charge by Regional Magistrate Munashe Chibanda, but six months were suspended on condition of future good behaviour.
When sentence was being considered, the magistrate dismissed the option of a fine as trivialising the offence, but was considering community service when it was discovered that she had defaulted on a previous option of community service in 2015.
Community service is an option for some sentenced to jail with the jail term being suspended if the community service is undertaken.
Because of that default, the trial court decided that she had to serve the three months of the earlier conviction as she had skipped community service, and because of that default had to serve the effective six months for the theft charge without, this time, an option of community service.
With one third normally deducted from a serving sentence for good behaviour, Murata was likely to be released in the middle of next month after serving six months as her behaviour was good. If her appeal had been heard earlier and her conviction and sentence quashed she would still have served to mid-August for the defaulted community service.
Murata was convicted in June of theft of trust property for using a hired car as collateral when she borrowed US$10 000 in September last year from Rachel Mhuka.
She first used a Mercedes Benz as collateral, but then replaced it with the car hired from Else Event Car Hire, which in turn was replaced by an expired passport and then once again by the Else Event car, which that company reported stolen in January when it was recovered.
The trial court agreed Murata had not benefited from keeping the car and so reduced the theft sentence.
There was a brief flurry in early October when Murata was summoned for trial on fraud charges based on the identical fact of the loan from Mhuka and the hired car collateral, but the State hurriedly withdrew that charge when they realised she had already been convicted on a different charge, but the same facts.
Her appeal to the High Court was finally heard by Justice Happias Zhou and Justice Benjamin Chikowero.
Through her lawyer Tafadzwa Muvhami she successfully argued that she had not intended to deprive Mhuka of her US$10 000 nor Else Event Car Hire of the car.
In the appeal judgment quashing the theft conviction, and thus automatically the sentence, Justice Zhou ruled that one of the essential elements of a theft conviction, the intention to permanently deprive the legal owner of property reported stolen, was missing as Murata did not have that intention.
She was just using the car as collateral. So her theft conviction had to be quashed and replaced with an acquittal.
As Murata has reportedly paid back the US$10 000 it appears that she is now clear of all civil and criminal court proceedings over the original loan and can resume her normal life.
Online Reporter