Fidelis Munyoro Chief Court Reporter
CHIRUMHANZU South legislator Cde Innocent Pedzisai escaped jail after the High Court on Friday cleared him of allegedly swindling the National Housing and Development Trust of $315 000.
Musician Energy Mutodi is the chief executive officer of the housing company.
Through his lawyer Advocate Sylvester Hashiti, Cde Pedzisai had appealed against both conviction and a three-year imprisonment imposed on him in October 2012.
Justice Francis Bere, sitting with Justice Charles Hungwe, allowed the appeal after the Prosecutor-General’s Office made several concessions on the propriety of the conviction and sentence.
“This is one of the many cases that come to High Court on appeal where magistrates wrongly convict innocent parties in cases that are purely civil and have no element of criminal liability,” said Just Bere.
Justice Hungwe concurred.
Adv Hashiti told the court that the trial court erred in convicting Cde Pedzisai on the competent charge of theft of trust property. He said evidence showed the money was used for purposes of development of residential stands as contained in the memorandum of agreement between the complainant and Cde Pedzisai.
Further, Adv Hashiti argued that the lower court misdirected itself in failing to observe that the case was a purely civil dispute that arose following the fall out between the parties and cancellation of the agreement by Cde Pedzisai.
Mr Edmore Mavuto conceded to grounds of appeal noted by the defence.
He said from the totality of evidence on record there was no evidence to sustain an offence of theft of trust property in terms of the provisions Criminal Law (Codification and Reform) Act [Chapter 9:23].
“What is in dispute is who between the appellant’s company and complainant’s company is liable for non-performance of duties agreed in the memorandum of agreement,” said Mr Mavuto.
“The dispute can only be solved in the civil court. In the premises the respondent (State) is of the view that the appellant was wrongly convicted.”
Cde Pedzisai, the Chairperson of the Leopold Takawira Housing Cooperative and also owns Innop Housing Cooperative, was in October 2012 found guilty of theft of property by a Harare magistrate.
Allegations against him were that in January 2010 Leopold Takawira Housing Co-operative applied for money to develop residential stands from the Ministry of National Housing and Social Amenities. They were, however, given land instead of cash.
In 2011 Cde Pedzisai then advertised for the purchase of residential stands to various individuals and cooperatives. He demanded to be given deposits upfront from home-seekers but converted the proceeds — $315 000, to personal use.
He was sentenced to three years in prison with one year suspended for five years and a further two years suspended on condition that he compensated the affected people the total sum.