The Bulawayo High Court has upheld an effective three-year prison sentence imposed on Bulawayo property fraudster who sold a house he did not own to a woman for US$14 000.
Isaiah Ncube (57) was convicted of fraud by the Bulawayo Regional magistrates’ court after falsely representing to Virginia Dube that he was the owner of House No. 5105, Emganwini, and that the property was available for sale.
The High Court, sitting in Bulawayo, dismissed his appeal against sentence, with justices Munamato Mutevedzi and Bongani Ndlovu ruling that the trial magistrate had properly exercised his sentencing discretion.
The court heard that Dube responded to a newspaper advertisement offering the Emganwini property for US$14 000.
She contacted the advertiser and was subsequently introduced to Ncube, who represented himself as the owner.
The two agreed on the purchase price and signed an agreement of sale in the presence of witnesses.
Ncube then instructed Dube to deposit US$9 000 into a bank account held in the name of Lenon Mukhwano.
She made the payment and also paid another $1 000 in bond notes.
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The balance of US$5 000 was due upon occupation of the property.
Dube later discovered that the property belonged to Stella Bafana, who had acquired it from the Bulawayo City Council in 2010.
Bafana told the court she had never sold the property, nor given Ncube authority or a power of attorney to dispose of it.
She also rejected Ncube’s claim that he had acquired the property in her name to circumvent council regulations preventing a person from acquiring more than one property.
Bafana said she had engaged Ncube to construct a house on the stand, but had never authorised him to sell it.
Ncube admitted selling the property to Dube and receiving the US$9 000, which he directed her to deposit into his nephew’s account.
He maintained, however, that the property belonged to him despite being registered in Bafana’s name.
He also claimed Dube had failed to pay the balance, resulting in cancellation of the agreement.
The trial court rejected his defence and convicted him of fraud.
It sentenced him to four years’ imprisonment, with one year suspended for five years on condition of good future behaviour, leaving an effective three years.
Ncube appealed against both conviction and sentence, but abandoned his appeal against conviction at the hearing.
The appeal, therefore, proceeded only on sentence.
His lawyer argued the trial court had wrongly treated the offence as aggravated and had failed to give sufficient weight to the fact that Ncube had eventually fully reimbursed Dube.
The High Court rejected the argument.
Mutevedzi said the trial magistrate had properly considered Ncube’s personal circumstances, including his age, marital status and responsibility for 12 children, as well as the restitution.
“Genuine restitution or an offer to compensate a victim is ordinarily a strong mitigating factor in crimes of dishonesty, such as theft and fraud,” the court said.
It added that where payments are made in a calculated or piecemeal manner close to trial, a court may assess whether they reflect genuine remorse.
The judges said the circumstances demonstrated significant aggravating features.
The appeal was therefore dismissed in its entirety.
