Tendai Rupapa Senior Court Reporter
A Harare man who was last year jailed for an effective three years for allegedly stealing $50 000 from Air Force of Zimbabwe Commander Air Marshal Perrance Shiri in a botched solar power system deal, is now a free man after he successfully appealed against his conviction and sentence at the High Court.
Brian Tarisai Kambasha was sentenced by magistrate Mr Milton Serima to five years in prison, before setting aside two years on condition of good behaviour and restitution.
He was convicted of theft of trust property and was jointly charged with his company Hemmingworth (Pvt) Ltd which was fined $1 000.
Justice Charles Hungwe acquitted Kambasha and in his ruling he said the lower court misdirected itself by convicting Kambasha and his company.
He added that Air Marshal Shiri should have proceeded with a civil claim.
“In the current matter, the relationship between the parties was contractual and ongoing and complainant should have exhausted civil remedies for breach of contract and sued the appellants for specific performance or cancellation of the agreement and damages in a civil court,” he said.
“It is our considered view that the essential elements for the offence of theft of trust property were not met. The complainant should have proceeded with a civil claim for breach of contract. It is our view that the court a quo misdirected itself in convicting the appellants.
“Indeed the trial court should not have placed the appellants on their defence given the fact that the State failed to establish a prima facie case against them at the closure of the State case. The convictions against both accused are quashed and the sentences are set aside. They are found not guilty and acquitted.”
During trial Kambasha was represented by Mr Tazorora Musarurwa before engaging Mr Obert Mawadze for his appeal.
It was the State’s case that in April 2013, Kambasha approached Air Marshal Shiri and proposed a solar power pilot project at his Hopedale Farm in Bindura.
The court heard that Kambasha indicated that the project involved three stages. Air Marshal Shiri agreed to have the first phase of the project undertaken at his farm at a cost of $50 125.
On June 7, 2013 Air Marshal Shiri entered an agreement to pay the money in instalments.
It was alleged that Kambasha only mounted metal stands for the plant and converted the money to his personal use. After two weeks Air Marshal Shiri approached Kambasha who gave him excuses.
The State was alleging that he failed to install the plant or reimburse the money, leading to his arrest on December 12, 2014.