By Judith Nyuke
The High Court has overturned the conviction of top real estate agent Pauline Muzhewe for theft of trust property, an accusation arising from an alleged failure to remit a US$3 750 commission to her principal after closing a property deal.
Muzhewe was sentenced to twelve months of imprisonment by a Harare magistrate, with six months suspended for good behavior and the remaining six months set aside provided she makes full restitution.
High Court Judges Pisirayi Kwenda and Davison Foroma quashed the conviction after the prosecution conceded the verdict was irregular following an appeal led by Stephen Chikotora of Rubaya and Chatambudza Legal Practitioners.
Muzhewe served as a property sales negotiator for Re/Max Advisory, facilitating transactions between buyers and sellers and earning commissions upon successfully concluding sales.
The court heard that in August 2024, while representing Re/Max Advisory, she collaborated on a sale with Dandeal Properties, represented by its principal agent, James Chihuri.
A total commission of US$7,500 was paid to be shared equally between the two agencies; Chihuri received the full amount and handed US$3,750 to Muzhewe, who was expected to remit it to Re/Max Advisory for standard processing.
However, it was alleged that instead of delivering the funds, she converted them to her own use and resigned without disclosing the transaction.
The alleged misconduct was discovered during a post-resignation records review, leading to her arrest after the Estate Agents Council (EAC) recommended reporting the matter to the police.
“The Appellant was convicted in circumstances where she ought not to have been convicted in the first place. The Appellant effectively handed over the money meant for Agents to one James Marufu Chihuri, who in turn signed for the full amount of US$7 500. The Appellant presented to the Court a signed Acknowledgement of Receipt wherein James Marufu Chihuri received the full US$7 500.
“Instead of believing the Appellant, who had documentary proof that James Marufu Chihuri had received the full US$7 500 which included the US$3 750 which the Complainant RE/MAX Advisory Zimbabwe was pursuing.
“The Court a quo failed to appreciate that the case was a one-witness case regards whether or not the Appellant got the alleged 50% of the US$7 500.00 in the first place. The Court a quo dismally failed to analyse the evidence appropriately since this was effectively a single-witness case,” the lawyers argued.
Conceding to the defense’s arguments, the State agreed that Muzhewe’s conviction was improper given the circumstances.
“Apart from the word of James Chihuri that appellant collected her share of commission o f U$3 750.00, there was no evidence produced to confirm that. This was a business transaction which ordinarily would have required documentary proof that a receipt be issued to the appellant for the said amount. Without such evidence adduced it becomes difficult to accept such an assertion when in the first place there was documentary proof that an amount o f US$7 500
was received as commission by James Chihuri. One would then ask the question, why now there is no receipt issued for the distribution of US$3 750.00 to the appellant nor any witnesses to confirm the transfer.
“The respondent would concede that the explanation advanced by the appellant remains standing. The evidence of James Chihuri on its own cannot be said to have shown the falsity of the explanation advanced by the appellant,” the State said.
