Online Reporter
Danisa Masuku, [email protected]
PROMINENT Bulawayo lawyer, Mr Zibusiso Ncube, of Ncube and Legal Practitioners, who was accused of misappropriating US$26 000 in trust funds, has been acquitted of charges of theft of trust property under Section 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Bulawayo Regional Magistrate Mr Mathew Mutiro on Friday ruled that Mr Ncube was not guilty.
In delivering the judgment, Mr Mutiro noted that the key witness admitted she had not handed the money directly to Mr Ncube and therefore had not suffered prejudice.
Witnesses gave conflicting statements, which rendered their testimony unreliable. One witness claimed to have handed the money to Mr Ncube at a police station, while another insisted they had not given the money to him at all.
Prosecutor, Mr Vhusani Moyo submitted that although the accused argued he had not personally received the money, the US$26 000 might have been retained by Qoki Zindlovukazi to pay capital gains tax at a later stage.
Mr Moyo cited the case of State versus Mutsanziri, in which it was established that payment to a law firm constitutes payment to the conveyancer concerned. He further argued that documentary evidence, including the agreement of sale, clearly showed that Mr Ncube had been appointed as the conveyancer, which empowered him to pay capital gains tax.
“The accused’s law firm received the money and, as senior partner and designated conveyancer, he had constructive receipt of the funds,” Mr Moyo submitted.
The State alleged that Mr Ncube unlawfully converted US$26 000 entrusted to him for payment of capital gains tax to the Zimbabwe Revenue Authority (ZIMRA) in a land transaction involving Foojip Investments (Pvt) Ltd.
In 2021, Mr Ncube acted on behalf of Qoki Zindlovukazi Investments (Pvt) Ltd in the purchase of a 38.8495-hectare property known as Subdivision E of Douglasdale for US$520,000.
Following the signing of the agreement of sale, Foojip director Debra Anne Montocchio allegedly gave Mr Ncube US$26 000 to settle capital gains tax.
Mr Ncube reportedly acknowledged receipt of the funds on 12 January 2022 and undertook to remit the money to ZIMRA and secure a tax clearance certificate. However, the State alleged that he failed to pay the tax, diverted the funds for personal use, and provided false assurances when pressed for proof of payment.
The matter was subsequently reported to the police, leading to his arrest.
