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Fidelis Munyoro Chief Court Reporter
A Harare mining engineer, Tawanda Sibanda, who was given a jail term of five years on theft allegations, breathed a sigh of relief after the High Court acquitted him on charges of stealing trust property worth $74 000.

Sibanda was slapped with a five-year jail term by regional magistrate Mr Noel Mupeiwa in September 2013 after he was convicted of theft of trust property and corruptly concealing a transaction from a principal.

The court ordered him to serve a one-year effective jail term after suspending three years on condition he restitutes Curechem the sum of $74 000 by December 16 last year.

A further one year was suspended on condition of good behaviour.

But Sibanda could not raise restitutions and remained in prison pending his appeal hearing at the High Court.

Justice Francis Bere, sitting with Justice Charles Hungwe, last week cleared Sibanda of the criminal charges on the grounds that the matter was purely civil, a case in which the prosecution conceded the trial court erred.

Justice Bere ruled that the trial magistrate had misconstrued a civil dispute stemming from an alleged breach of contract for a criminal offence.

“For that reason, the charges against the appellant cannot stand,” said Justice Bere, adding, “the appellant must be set free immediately.”

Mr Isaiah Mureriwa of Scanlen and Holderness, who represented Sibanda, welcomed the court’s ruling, saying it was just in the circumstances.

He said the case was important because it puts to the fore the challenges emanating from the criminalisation of civil disputes in the Criminal Code, which makes it difficult to distinguish civil disputes from criminal of- fences.

“This is more problematic in my view if one bears in mind that in terms of the new Constitution, a person may not be incarcerated merely on account of failing to pay a civil debt,” said Mr Mure- riwa.

Section 49(2) of the Constitution provides that no person may be imprisoned on the grounds of inability to fulfil a contractual obligation.

Sibanda (34) was employed as a marketing manager by Curechem Overseas, when he allegedly committed the crime.

Charges against Sibanda were that contrary to his contract of employment, sometime in 2012, he formed and joined a company called Evetech Investments as one of its directors.

The court heard that Sibanda’s company started trading in chemicals, just like his employer’s firm, but did not disclose his business interests to his employer, Curechem group managing director, Anup Chand.