FOUR men ganged up and defrauded Pretoria Portland Cement (PPC) Zimbabwe of more than US$26 500 after cloning the company’s ATM card and using it to conduct illegal Point of Sale (POS) transactions at various outlets in Bulawayo.
This emerged when one of the accused persons, Malcolm Stanley Migogo (37) of Cowdray Park approached the High Court in Bulawayo seeking bail pending appeal.
Migogo teamed up with Divine Gandawa (36) of Nkulumane, Farai Gandawa (30) of Pumula South and Cylous Ndlovu (39) of Pumula South before they defrauded the cement manufacturing company of US$26 529, 39 over a period of seven months last year.
They were last month convicted of fraud by Bulawayo regional magistrate, Ms Sibonginkosi Mkandla.
The four men were each sentenced to five years in jail of which one year was suspended for five years on condition of good behaviour.
A further two years were suspended on condition that they restituted the stolen money leaving each one of them with an effective two years to serve.
Migogo, through his lawyers Mutuso, Taruvinga and Mhiribidi Attorneys, yesterday filed an application for bail pending appeal at the Bulawayo High Court citing the State as the respondent.
In his bail statement, Migogo said there was no likelihood of absconding if granted, arguing that he had prospects of success on appeal.
“It is submitted that there is no hint of any likelihood of abscondment by the applicant as he is a family man with minor children and a wife to look after. He is gainfully employed and has never exhibited signs of flight,” argued Migogo’s lawyers.
He said his charge was framed by the State and argued that it was capable of being quashed in terms of section 178 of the Criminal Procedure and Evidence Act because he was not accorded a fair trial.
Migogo said no evidence was placed before the court proving that there was commonality between himself and his co-accused’s conduct.
“It is respectfully submitted that the charge as drafted by the State is clear in that it alleges that the act of misrepresentation was the use of a cloned bank card to the prejudice of the complainant. It was therefore upon the State to prove that indeed the applicant knew that the card was cloned at the time that he transacted with it at OK Mart and that his intention was to prejudice the complainant,” said the lawyers.
Migogo said he had a reasonable arguable case warranting the High Court to interfere with both his conviction and sentence.
He said the lower court misdirected itself by taking a speculative approach to the evidence before it, and argued that the State failed to proffer enough evidence linking him to the offence.
Migogo said the sentence imposed on him was excessive and induced a sense of shock.
He offered to pay $300 bail and to report twice a week at Bulawayo Central Police Station as part of the bail conditions.
According to court papers, on May 1, 2007, Mr Ian Donald David Sheasby who was employed by PPC Zimbabwe as a commercial director was issued with a Stanbic Visa Card bearing number 4069091005173868.
On March 31, 2018, Mr Sheasby resigned from the company and handed over the card to Ms Joan Patricia Alexander who secured the card by locking it in a drawer in her office.
Between March 31 and October 23 in 2018, Migogo and his accomplices unlawfully acquired the card information and went on to duplicate it.
They then went to various shopping outlets in Bulawayo and used the cloned card to conduct several POS transactions.
They bought groceries, electrical gadgets and beverages and in the process prejudicing the company of US$26 529, 39.
PPC Zimbabwe discovered that there were financial transactions being debited from their account. The company alerted its banking institution, Stanbic, which subsequently blocked the card.
A report was made to the police and investigations were conducted leading to the arrest of the two Gandawa brothers who implicated the other two accomplices.
Police recovered several Samsung LED television sets, which were purchased from OK Mart in Bulaway.