THE Supreme Court has thrown out an appeal by former Public Service, Labour and Social Welfare minister Petronella Kagonye who was seeking to have her conviction and sentencing set aside.
Kagonye was convicted on a charge of theft of trust property on 8 June 2022 after she failed to account for 20 laptops that were meant for a donation in her then constituency.
She was however granted bail pending appeal by the High Court.
A three-judge Supreme Court bench comprising justices Susan Mavangira, George Chiweshe and Samuel Kudya ruled that Kagonye was correctly convicted by the trial court.
The judges also said it remains common cause that the laptops were never accounted for, as such the High Court was not wrong in throwing out her appeal.
“The laptops constituted trust property in keeping with her request of 20 June 2018 upon which she mandated Evans (her brother) to collect them from POTRAZ [Posts and Telecommunications Regulatory Authority of Zimbabwe].
“She neither handed over the property to the intended beneficiaries nor utilised it for its intended purpose.
“In these circumstances, the court a quo correctly upheld her conviction by the trial court, on the charge of theft of trust property.
“We therefore find the six grounds of appeal that were raised against her conviction to be devoid of merit,” the court ruled.
Kagonye was also charged with fraud.
After a full trial, she was found guilty as charged.
The allegation as set out in the outline of the state case was that during the period extending from 1 June 2018 to 12 July 2020, Kagonye wrote a letter to the ministry of Information, Communication Technology requesting computers to donate to schools in Goromonzi South.
On 20 June 2018, the then minister, Supa Mandiwanzira, wrote a letter to Potraz requesting that it facilitate a donation of computers through its e-Learning project, to Goromonzi South schools.
Potraz donated 20 computers for Goromonzi South constituency schools.
The computers were collected by Kagonye’s brother, who also served as her driver, on her behalf.
The brother signed the collection form.
Potraz made follow-ups on the donation with Kagonye and the computers could not be accounted for.
No school in Goromonzi South confirmed receipt of any of the donated computers, thereby showing that Goromonzi South schools had been permanently deprived of the computers donated to them by Potraz.
The value of the stolen computers was given as US$8 000 and nothing was recovered.
Kagonye confirmed having received the laptops but stated that when the laptops were collected by Evans, they were handed over to the campaign committee and that she was present only on two occasions when two of the laptops were distributed.
However, at the time the remaining laptops were handed over to the beneficiaries she had left the country.
In support of this, copies of her visa and passport pages were tendered as exhibits during trial.
Her defence was that the request for computers was not the same as a request for laptops.
She said that unlike the request for computers, which computers were to be donated to schools, the request for laptops was meant for the less privileged people.
Kagonye indicated that the laptops had been distributed to students during her campaigns but failed to account for the laptops through their serial numbers.
Such information was never recorded for purposes of accountability and her explanation was that she did not think that such information was required by Potraz.
She was then found guilty and was jailed 36 months imprisonment, with 12 months suspended on condition of good behaviour.
The court would have suspended only six months but due to the fact that she is a female offender with a child below five years, 12 months was justified.
The magistrate further suspended eight months on condition of restitution, leaving her to serve 16 months.
Aggrieved by the ruling, Kagonye mounted an appeal at the High Court, arguing, among other things, that the computers were not trust property.
The High Court ruled that the judgment was correctly handed down.
The court further found that it was common cause that the appellant did not deliver the 20 laptops to the schools in Goromonzi and that she dealt with those laptops in a manner contrary to the trust agreement.
It was also confirmed that under all the circumstances, the judgment of the trial court demonstrated that all the issues raised in the appeal against conviction had been properly decided against Kagonye and that the appeal against conviction was completely devoid of merit.
Kagonye then approached the Supreme Court complaining that the High Court erred in failing to find that the sentence imposed on her was grossly outrageous and induced a sense of shock.
The Supreme Court however threw her appeal out, ruling that Kagonye purported to distinguish between laptops and computers, a distinction that state witness Dewera said is of no consequence.
“Going by her distinction between computers and laptops, she sent Evans (her brother) to go and collect computers, not laptops.
“Her authority for Evans to do the collection should, if her adopted stance was to be believed, have been for the collection of laptops and not computers as reflected in the document that she signed.
“She had made a request for computers to donate to schools. Her request was acceded to in line with the e-learning programme.
“She sent Evans to go to collect the computers. These could not have been anything but trust property,” said the Supreme Court.
“The trial court cannot be faulted for disbelieving the appellant (Kagonye) whose evidence it found to be ‘filled with inconsistencies’ and for finding that her guilt had been established beyond reasonable doubt.
“A fortiori, the court a quo cannot be faulted for agreeing with the trial court and finding that all the issues raised in the appeal against conviction before it had been properly decided against the appellant.
“Three laptops were given to two students and one to a school for physically challenged children. Seventeen laptops have never been accounted for.
“The appellant initially told the trial court that she had a record of where all the laptops went and that it was with her secretary but the secretary’s evidence did not confirm this.”
The court said, clearly, on the evidence found by the trial court and confirmed by the High Court a quo, the essential elements for theft of trust property prescribed in a contravention of section 113 (2) of the criminal code were satisfied.
