Theft of trust property

Tichawana Nyahuma Legal Matters
THE crime that is known as “theft of trust property” has become most prevalent in these recent times in our country. In order to lay bare the bones that make up this offence, I propose to first shed light on the crime of theft generally, it being the tree trunk from which all other branches of the crime draw their lives.

There is no doubt that throughout all societies in the world, theft is classified as an offence or a felony. In our country, theft is a crime by virtue of Section 113 of the Criminal Law (Codification and Reform) Act, which I shall hereafter, call “the Code”.

Before the coming into being of the Code, theft was an offence at common law. By this it meant that although there was no written law as such in the form of an actual Act of Parliament that criminalised thieving, it was nonetheless an offence.

In fact, during those days, many other crimes such rape, murder, robbery, forgery and the like, were also common law offences. Even though there was no specific law that categorised these nefarious forms of conduct as crimes, they were crimes all the same.

What Parliament did when it enacted the Code was to just bring together all common law crimes and deposited them into one law now called the Criminal Law (Codification & Reform) Act, the said Code. Ever since the Code became law, every person accused of an offence has to be charged with a crime that stems from that Code or any other statute which may be a Statutory Instrument or a Parliament made law such as the Gold Trade Act, the Posts and Telecommunications Act, the Public Order and Security Act, etcetera.

The police cannot now, as it were, produce a charge out of the blue as they used to virtually do before the advent of the Code.

According to the Code, theft is committed when any person takes property that is capable of being stolen knowing that another person is entitled to own, possess or control the property or realising that there is a real risk or possibility that another person may be so entitled and intending to deprive that other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control of the property.

There are several other forms of theft such as making off without payment, unauthorised borrowing or use of property, spending another person’s money with the intention of refunding it or consuming another’s property with the intention of replacing it in due course.

An important feature of these forms of theft is that even if the accused person genuinely but mistakenly believes that the law allows him or her to spend, consume or dispose of that property provided that he or she replaces it at sometime in the future, that person still commits the offence.

I now turn to the specific offence of theft of trust property. Before this crime was codified, that is to say, prior to its inclusion in the Code, it was the one that was called “theft by conversion”.

As I now delve further into the matter, it is essential to answer the question; “what is “trust property”? According to the Code, “trust property” means property held, whether under a deed of trust or by agreement or under any law on terms requiring the holder to do any or all of the following things;

(a) hold the property on behalf of another person or account for it to another person; or

(b) hand the property over to a specific person; or

(c) deal with the property in a particular way; but does not include property received on terms expressly or impliedly stipulating that the recipient is entitled to use the property as his or her own; and there would only be a debtor and creditor relationship between the parties.

So if a person is entrusted with any property and by “property” this also includes money, whether it be hard cash or in the bank, that person is not entitled to convert the property to his or her own use without the prior express or implied authority of the owner of the property or his/her duly authorised representative. If the property is so converted to own use without the requisite authority, the crime is completed and therefore committed.

What I note in our country is that presently, there seems to be a rise in the number of cases that seemingly involve theft of trust property that are being needlessly brought before the criminal courts. The nature of these cases is that people enter into certain agreements whereupon one of the parties pays money for the provision of certain services or for the supply of certain goods. At law, if the provider of the service or the supplier of the goods fails to perform his/her side of the bargain but nevertheless proceeds to utilise the funds paid consequent upon the agreement, no criminal offence would have been committed.

What would have occurred is that the other party would have breached the agreement between them. That is exactly what is covered by paragraph c above. A debtor-creditor relationship would have been created and what this therefore means is that whoever sustains a loss out of that transaction has to sue the other party in the civil court rather than reporting the case to the police as a criminal offence.

Note, however, that if the provider of the services or the supplier of the goods makes misrepresentations which then induces the other party to enter into that agreement and thereby acting to his own prejudice, the matter assumes a different colour altogether. It moves to another level. Depending on the circumstances, the misrepresenter may be prosecuted for either fraud or forgery or better still, fraud and forgery but certainly not theft of trust property.

The other important feature of the crime of theft of trust property is the legality of the transaction in question. The starting point is always that courts do not enforce illegal or immoral agreements particularly in the criminal court.

One cannot seek the protection of the very law he/she was defying when he suffered his/her misfortune. To that end, the courts have developed the so called “dirty hands” doctrine which entails that persons who incur losses while they were busy breaking the law cannot expect to get assistance from courts of law. The case of Mega Pak Zimbabwe (Private) Limited vs Global Technologies (Private) Limited HH84/08 is relevant. In that case, then Judge President of the High Court, Rita Makarau JP, put it neatly when she opened the judgment in this way;

“I am quite taken by the notion that justice is dispensed from ‘halls of justice’. I further like the idea that these halls are sparkling clean, hence no litigant with grubby hands is allowed in.”

Accordingly, if X and Y enter into an agreement in terms of which the former hands over to the latter, a parcel of insango/imbanje or some other contraband, to deliver to a particular person but instead of doing as instructed, Y appropriates the imbanje for himself or sells it for his own benefit, X cannot beat the path to court to claim that such a parcel was trust property and that therefore, Y must be ordered to return the imbanje or pay the value thereof in money.

That transaction being illegal at all times and for all purposes, the criminal court is very likely to decline to entertain the case not only on the grounds that the transaction was unlawful but also that it was immoral and against public policy. Surely, it would offend the public’s sense of justice if courts of law were to enforce illicit and immoral contracts. Courts of law exist for the exact opposite purpose which is to promote and protect legality and good morals among the citizenry.

The situation is, however, slightly different in a civil court. There, although the court will start from the same premise of refusing to enforce a prohibited contract on the grounds already alluded to, if X is able to convince the court that the other party was unjustly enriched at his own expense, a civil court may, and that is a very big “may”, relax the rule and order that Y returns the property to X if it was not already consumed or pays the price. This is done in very exceptional situations. As both X and Y were in pursuit of an illegal act when X suffered his loss, the position is normally that the loss must lie where it falls.

It is in fact said that no cause arises out of an immoral or unlawful act. Furthermore, the parties will be in equal guilt and the advantage will therefore remain with the possessor of the goods or the holder of the value thereof, in this case Y stands to benefit out of that transaction.

So if you should be involved in any transaction that might have fragrances of illegality such as the buying of cash at a premium or some other such unlawful deal, you might want to think very carefully about which court to go to or if you should approach any court at all.

The hurdles in the criminal court are set at very high levels being that in the first place, the criminal court is not interested in seeing you or hearing you for you have “dirty hands”. In the event that you are so lucky as to be seen and be heard by a criminal court, the level of proof required in order for you to succeed is the so called proof beyond a reasonable doubt which is a very high standard. On the other hand, if you decide to approach the civil court, although you are likely to be seen and be heard, you have to tell a very convincing story why the court should come to your assistance when you and the other party are in equal guilt as I have said.

If you clear that first hurdle, the next one is easier and that is the level of proof required; it is proof only on a balance of probabilities which is much lower than the said proof beyond a reasonable doubt. Furthermore, if a civil court hears you, the rule that says that illegal contracts are unenforceable may be relaxed in order to do justice between man and man particularly if the other party was unjustly enriched at your direct expense. Having said all this, all are implored to stay on the correct side of the law in all their dealings and shenanigans so that trouble will not find them.

Tichawana Nyahuma is a lawyer and he writes in his personal capacity.  Feedback: [email protected]