Fraud https://old.zimlii.org/taxonomy/term/10099/all en Tangwena And Anor v The Prosecutor General (SC 75/21, Civil Appeal No. SC 322/18) [2021] ZWSC 75 (14 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/75 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 75/21</p> <p>Civil Appeal No. SC 322/18</p> <p> </p> <p><strong>DISTRIBUTABLE</strong><strong>    (72)</strong></p> <p> </p> <p><strong>(1)     ISRAEL     TANGWENA      (2)     TONDERAI     MUOCHA</strong></p> <p><strong>v </strong></p> <p><strong>THE     PROSECUTOR     GENERAL</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, PATEL JA &amp; BHUNU JA</strong></p> <p><strong>HARARE: 6 JUNE 2019 &amp; 14 JUNE  2021</strong></p> <p> </p> <p><em>C Warara, </em>for the Appellant</p> <p><em>E Mauto, </em>for the Respondent.</p> <p> </p> <p> </p> <p> </p> <p><strong>BHUNU JA</strong>: This appeal from the High Court has its genesis in the Magistrates Court which acquitted both appellants on one charge of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] and, secondly, operating an unregistered trust in contravention of s 9 of the Private Voluntary Organisations Act [<em>Chapter 17:05</em>]. Aggrieved by the acquittal of both appellants on the first count the respondent appealed to the High Court (the court <em>a quo</em>).</p> <p> </p> <p>The court <em>a quo</em> after full contest found that the trial court erred and misdirected itself in that it misconstrued the facts in acquitting both accused. On the basis of such finding it adjudged that the trial court ought to have found both accused guilty as charged. It thus upset the judgment acquitting the appellants and issued the following order:</p> <p>            “Accordingly the court orders as follows:</p> <p> </p> <ol> <li>The appeal against the acquittal of first and second respondents (Now appellants) in CRB R 856 succeeds.</li> <li>The matter is remitted back to the trial court for sentencing.”</li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>PRELIMINARY OBJECTION</strong></p> <p>At the commencement of the hearing, counsel for the respondent raised a preliminary objection arguing that the first appellant, Israel Tangwena, should be barred from being heard on account that he is a fugitive from justice on a warrant of arrest.</p> <p> </p> <p>Counsel for the appellants countered that they were taken by surprise as they were not served with any warrant of arrest. The issue was being raised for the first time at the appeal hearing. It would be unfair and unjust for the respondent to ambush them with an issue never raised before in the pleadings and heads of argument. In any case, the same arguments for the second appellant would apply to both appellants on the merits. There would therefore be no prejudice if the first respondent was heard by the court.</p> <p> </p> <p>Having considered the appellant’s response, counsel for the respondent promptly withdrew his preliminary objection with the court’s approval.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The facts giving rise to both charges are hotly contested in the main. What is however not in dispute is that the complainant, Douglas Mamvura, was the owner of a company called Hedgehold Trading (Pvt) Ltd trading as Manna Brands.</p> <p> </p> <p>On the other hand, the appellants were the owners of an agri-business styled Makonde Industries. The business was in financial distress and consequently under liquidation. Desirous to revive their agri-business, the appellants approached the complaint with a proposal for Hedgehold to buy the troubled agri-business and assume its liabilities. It was a term of the agreement that the complainant would allot the appellants shares in the company.</p> <p> </p> <p>It was further proposed and agreed that, because the complainant had a clean financial record with the banks, he would be responsible for obtaining loans from his bank and other financiers to fund the new joint venture agri-business under the style of Hedgehold (Private) Limited.</p> <p> </p> <p>The complainant bought into the idea and it was agreed that, as the sole financier of the new joint venture rebranded Hedgehold (Pvt) Ltd, he would be one of the Directors, Executive Chairman and majority shareholder of the company. The other minority shareholders would be the two appellants and the late Chimbindi Fanuel. Open Tribe Foundation Trust was to be the fifth shareholder.</p> <p> </p> <p>The initial CR2 allotted the company’s shares as follows:</p> <ol> <li>Douglas Mamvura (Complainant)                   75%</li> <li>Tangwena Israel (1st Appellant)                      11%</li> <li>Muocha Tonderai (2nd Appellant)                   5%</li> <li>Chimbindi Fanuel (late)                                  5%</li> <li>Open Tribe Foundation Trust                         4%</li> </ol> <p> </p> <p> </p> <p> </p> <p>It is common cause that the fifth shareholder, Open Foundation Trust, was unregistered. Its object was nevertheless to cater for the welfare of underprivileged orphans, widows, HIV and AIDS victims. This forms the basis of the second allegation against the appellants, which is however not relevant to this appeal.</p> <p> </p> <p>In pursuit of the agreement, the complainant mortgaged his home and various other properties, including his wife’s car, to raise a total of US$350 000 which he ploughed into the agri-business. The business venture kick started with the complainant closely guarding his investment for fear of losing his mortgaged properties and investment.</p> <p> </p> <p>The learned judge in the court <em>a quo </em>found that the strict administrative measures adopted by the complainant must have unsettled the other Directors, thereby generating conflict and irreconcilable differences. The conflict culminated in the minority Directors locking out the complainant. They eventually filed a new CR2 with the Registrar of Companies in a bid to strip the complainant of all his rights and interest in Hedgehold. Despite their concerted endeavour to terminate their business relationship with him, they continued to hold onto his investment to his exclusion and detriment.</p> <p> </p> <p>In a bid to achieve their fraudulent scheme, the appellants are alleged to have crafted and filed fraudulent CR2, CR11 and CR14 documents with the Registrar of Companies to divest the complainant of his Directorship and shareholding in Hedgehold.</p> <p> </p> <p>The appellants denied the allegations of fraud both in the Magistrates Court and in the court <em>a quo</em> on appeal.</p> <p> </p> <p><strong>THE ISSUES FOR DETERMINATION</strong></p> <p>The appellants attacked the court <em>a quo’s</em> judgment on both procedural and substantive grounds. The grounds of appeal however raise one crisp issue for determination. The single issue for determination is:</p> <p> </p> <p>Whether or not the court <em>a quo</em> correctly found the appellants guilty of fraud as charged.</p> <p> </p> <p> </p> <p> </p> <p><strong>WHETHER OR NOT THE COURT <em>A QUO</em> CORRECTLY FOUND THE APPELLANTS GUILTY OF FRAUD AS CHARGED. </strong></p> <p>The appellants challenged their conviction on the basis that the respondent failed to discharge the onus of proving the essential elements of fraud beyond reasonable doubt. Section 136 of the Criminal Law (Codification and Reform Act) [<em>Chapter 9:23</em>] provides for the definition and essential elements of fraud as follows:</p> <p><strong>“136 Fraud</strong></p> <p> </p> <p>Any person who makes a misrepresentation</p> <p> </p> <p>(<em>a</em>)      intending to deceive another person or realising that there is a real risk or      possibility of deceiving another person; and</p> <p> </p> <p>(<em>b</em>) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;</p> <p> </p> <p>shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person, and be liable to:</p> <p> </p> <p>(i) a fine not exceeding level fourteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or</p> <p> </p> <p>(ii) imprisonment for a period not exceeding thirty-five years; or both”.</p> <p> </p> <p> </p> <p> </p> <p>The Act defines the offence of fraud in simple though somewhat frosty and verbose language, such that it needs further elucidation to give effect to the intention of the lawmaker.</p> <p> </p> <p>In plain layman’s language, fraud may however be defined as dishonestly making a false misrepresentation with the intention to cause actual or potential prejudice to another person. The intention of the legislature in s 136 of the Act was to proscribe and punish theft by deceitful means.</p> <p> </p> <p>In the context of the statutory definition of fraud, its essential elements may be paraphrased as follows:</p> <p> </p> <p>1.     Making a misrepresentation to another person.</p> <p> </p> <p>2.   With the intention to cause another person to act on the misrepresentation to the actual or potential prejudice of any person.</p> <p> </p> <p>                       </p> <p> </p> <p>Section 136 of the Act is couched in broad terms encompassing a situation where the misrepresentation is made to a person other than the subject of the intended prejudice. To constitute fraud, it is sufficient that a misrepresentation is made to any person with the intention of causing any other person actual or potential prejudice.</p> <p> </p> <p>In <em>casu</em>, it does not therefore matter that the misrepresentation was made to the Registrar of companies with the intention of causing prejudice to the complainant.</p> <p> </p> <p> </p> <p>It is plain from the evidence led in the trial court that the appellants completed and submitted the alleged fake fraudulent CR2 document dated 23 January 2013. The alleged fake CR2 form now reflects that all the shares in Hedgehold were allotted to Open Tribe Foundation Trust on 25 January 2013. The State alleged that the fake CR2 was backed up by an equally fraudulent special resolution of Hedgehold crafted in the following terms:</p> <p>“IT WAS RESOLVED THAT:</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> 1. Cancellation of CR2</p> <p> </p> <p>That the unauthorised CR2 which sought to change the ownership of the company in contravention of paragraph 4 and 5 (b) of the company’s Articles of Association be amended and replaced.</p> <p> </p> <p>2.  Allotment of shares.</p> <p> </p> <p>That the unissued shares in the company being 1870 (one thousand eight hundred and seventy) shares of 1 (one) dollar each be allotted in full to Open Foundation Trust Trading and that a form CR2, share allotment form, giving effect to the allotment be lodged with the Registrar within the prescribed time.”</p> <p> </p> <p> </p> <p> </p> <p>The effect of the amended CR2 form was to deceitfully strip and divest the complainant of his entire shareholding and huge investment in Hedgehold Pvt Ltd to the tune of US$350 000 without his consent. We therefore find no merit in the appellants’ complaint that the court <em>a quo</em> misdirected itself in substituting its own discretion for that of the trial court. This is because the trial court’s acquittal of the accused in the face of overwhelming evidence was irrational and grossly unreasonable.</p> <p> </p> <p>In <em>Chiodza v Siziba</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>, relied upon by the appellants, this Court held that:</p> <p>“The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there had been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court.”</p> <p> </p> <p> </p> <p>In this case, the basis of the court <em>a quo</em>’s interference was the failure by the magistrate to appreciate the full extent of the State’s case and the evidence on record leading to a failure of justice. The court <em>a quo</em> found that there was clear cogent expert evidence establishing beyond reasonable doubt that the documents admittedly crafted and presented to the Registrar of companies by the appellants to the prejudice of the complainant were fraudulent.</p> <p> </p> <p>A perusal of the record of proceedings shows that the learned judge <em>a quo’s</em> remarks, at p 10 of the cyclostyled judgment, to the effect that the trial magistrate strangely went out of his way to justify the fraudulent acts of the appellants, are beyond reproach.</p> <p> </p> <p>That being the case, the court <em>a quo</em> cannot be faulted for finding that the trial court misdirected itself in acquitting the appellants in the face of overwhelming evidence establishing the accused’s guilt.</p> <p> </p> <ol> <li><strong>.</strong></li> </ol> <p>That the State proved the accused’s guilt beyond reasonable doubt is beyond question. For that reason, the appeal can only fail.</p> <p> </p> <p>It is accordingly ordered that the appeal be dismissed.</p> <p><strong>GWAUNZA DCJ</strong>                             I agree</p> <p><strong>PATEL JA</strong>                                        I agree</p> <p><em>Warara and Associates, </em>appellants’ legal practitioners</p> <p><em>National prosecuting Authority, </em>respondent’s legal practitioners.</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> SC 4/15 at p6</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/75/2021-zwsc-75.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33419">2021-zwsc-75.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/75/2021-zwsc-75.pdf" type="application/pdf; length=514488">2021-zwsc-75.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/4">Chioza v Siziba (Civil Appeal No SC 16/11) [2015] ZWSC 4 (22 February 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1967/63"> Private Voluntary Organizations Act [Chapter 17:05]</a></div></div></div> Mon, 21 Jun 2021 07:27:18 +0000 Sandra 10067 at https://old.zimlii.org Prosecutor General v Madefit Investments (Pvt) Ltd (HH 10-21, HACC 23/20) [2021] ZWHHC 10 (18 January 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/10 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PROSECUTOR GENERAL</p> <p>versus</p> <p>MADEFIT INVESTMENTS (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIKOWERO J</p> <p>HARARE, 23 December 2020 and 18 January 2021</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p><em>C. Mutangadura</em>, for the applicant</p> <p><em>D.C Ngwerume</em> with <em>A. Borerwe</em>, for the respondent</p> <p> </p> <p>            CHIKOWERO J: This is an application for a civil forfeiture order brought in terms of s 79 as read with s 80 of the Money Laundering and Proceeds of Crime Act [<em>Chapter 9:24</em>] (“the MLPCA”).</p> <p>            The applicant’s contention is that respondent’s five motor vehicles are tainted property and should be forfeited to the state.</p> <p>THE FACTUAL BACKGROUND</p> <p>            The applicant is the Prosecutor General of Zimbabwe. The respondent, a company duly registered in term of the laws of Zimbabwe, is in the trucking business and owns several haulage trucks.</p> <p>            The police received information suggesting that respondent was smuggling trucks into this country. Thereafter, it would alter the identities of those vehicles to assume the identities of vehicles which would already have been registered in terms of the Vehicle Registration and Licensing Act [<em>Chapter 13:14</em>] (“the VRLA’). The result would be that the offending vehicles would be carrying false identities, in contravention of the VRLA.</p> <p>            Acting on this information, the police impounded seven motor vehicles from stand number 301/99 Tilco Industries, Chitungwiza, being the respondent’s place of business.</p> <p>            The Criminal Investigations Department Vehicle Theft Squad subjected the vehicles to a forensic examination by a forensic scientist employed by the Ministry of Home Affairs and Cultural Heritage, Department of Forensic Science. Her duties included examination of stolen motor vehicles.</p> <p>            The examination was carried out on 10 January 2020 at the Criminal Investigations Department Vehicle Theft Squad in Southerton, Harare. The forensic reports, which were attached to the founding affidavit, took the form of affidavits made deposed in terms of section 278 (1) (a) and (b) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] (“the CPEA”).</p> <p>            In respect of five out of the seven vehicles, the findings of the forensic examination were as follows:</p> <p>ONE RED FREIGHTLINER TRUCK HORSE WITH REGISTRATION NUMBER ADS 4104</p> <p>            The paint profile indicated that white was the original colour of the motor vehicle.</p> <p>            The chassis number IFUU5D8XXU385933 was dot punched on the near side of the chassis frame.</p> <p>            There were striation marks where the Chassis number is normally located.</p> <p>            Chemical etching on the area where the chassis number is normally located did not restore the original chassis number.</p> <p>            The engine number 11937605 was punched on the engine block where the engine number is normally located.</p> <p>            There was no physical evidence of tampering on the engine number.</p> <p>ONE WHITE INTERNATIONAL HORSE WITH REGISTRTION NUMBER ADZ 4880</p> <p>            The paint profile indicated that the original color of the motor vehicles was white.</p> <p>            The data plate could not be located.</p> <p>            There was no physical evidence to indicate that the engine number 23172131 was tampered with.</p> <p>            Striation/file marks were observed on the chassis frame where the original Chassis number is normally located.</p> <p>            Physical evidence indicated that the original Chassis number was removed and a new number, IHTRL 00852998, punched to the right of the original number.</p> <p>            Chemical etching partly restored the original chassis number, that is, - H5…..JH 537341.</p> <p>ONE RED FREIGHTLINER HORSE WITH REGISTRATION NUMBER AEG 6695</p> <p>            The paint profile indicated that white was the original colour of the vehicle.</p> <p>            The sticker stamped on the near side door frame bore the following, among other pieces of information:</p> <p>            Vehicle Identification Number :1FUYDCYB2YP854636</p> <p>            Date of manufacture               : 06/95</p> <p>            The engine number 11663024 was punched on the engine block where the engine number is normally located.</p> <p>            There was no physical evidence to indicate that the engine number was tampered with.</p> <p>            The chassis’s frame bore the number IFUYDCYB9T854634 on the area where the chassis number is normally located.</p> <p>            Two of the integers, 9 and 4, where obliterated and different intergers, 2 and 5 respectively punched above them.</p> <p>ONE RED FREIGHTLINER HORSE WITH REGISTRATION NUMBER ADS 0982</p> <p>            The paint indicated that white was the original colour of the motor vehicle.</p> <p>            The plastic sticker located on the near side door frame bore, among other pieces of information, the following:</p> <p>            Vehicle identification IFUYSDYB5WL 970002</p> <p>            The area of the chassis frame where the chassis number is normally located was heavily painted over with orange on the base and black on top.</p> <p>            Chemical etching on this area of the chassis frame revealed two rows of incomplete integers 6-1-60 and 2-1-12-93 respectively.</p> <p>            The two rows of integers were unaligned, unevenly spaced and incomplete.</p> <p>            Chemical etching did not restore the original chassis number.</p> <p>            There was no physical evidence to indicate that the engine number 11878189 was tampered with.</p> <p>ONE RED FREIGHTLINER HORSE WITH REGISTRATION NUMBER AEZ 0790</p> <p>            The paint evidence indicated that red was the original colour of the vehicle.</p> <p>            The data plate was missing.</p> <p>            The chassis number IFUYDMDB65H544393 was punched on the chassis frame where the chassis number is normally located.</p> <p>            The “B” and “H” letters had font that was bigger and uneven compared to the rest of the integers.</p> <p>            Chemical etching did not restore the original chassis number.</p> <p>            The engine number 11760181 was punched on the engine block where the original engine number is normally located.</p> <p>            There was no physical evidence to indicate that the engine number was tampered with.</p> <p>            In its opposing affidavit, respondent complained that the forensic examination was carried out in its absence and without its knowledge. It also complained that no photographs of the vehicles were shot before and after the examination.</p> <p>            Respondent denied tampering with the identities of all the five vehicles. In respect of AEG 6695 and ADS 0982, respondent averred that it bought these vehicles locally and effected change of ownership, in its favour, through the very same Southerton Police Station. As for ADZ 4880 and AEZ 0790 respondent averred that what was done was not tampering with the identities of the vehicles. Instead, respondent applied to the Zimbabwe Republic Police Criminal Investigations Department Vehicle Theft Squad for restoration of the engine and chassis numbers. The police granted the application to restore the engine and chassis numbers with a police officer endorsing on the application form that the engine and chassis were corroded.</p> <p>            Respondent also averred that I should disregard the affidavits of Detective Assistant Inspector Blessing Mazvita Mukura and Detective Inspector Tendai Nzirawa, both of the Vehicle Theft Squad. Some of the reasons for this averment were that the affidavits were made in terms of s 59 (1) (d) (iii) of the CPEA and that those affidavits, although attached, referred to and the contents thereof incorporated in the founding affidavit, were not allocated annexure numbers.</p> <p>            Respondent took the view that the present application is malicious because having made no headway in seeking the forfeiture of the same vehicles through the criminal justice system the applicant had now resorted to civil forfeiture. Respondent averred that applicant is thus abusing the provisions of the MLPCA.</p> <p>THE APPLICANT’S SUBMISSIONS</p> <p>            In well researched heads of argument, the applicant took the court through the law relating to civil forfeiture in, among other jurisdictions, the United States of America and South Africa.</p> <p>            In respect of our MLPCA, Mr <em>Mutangadura</em> argued that the findings of the forensic expert spell out the factual foundation for suspecting, in terms of s 79, that the five vehicles were tainted property and hence liable to be fortified to the State.</p> <p>            Section 80 (1) of the MLPCA is clear that the civil forfeiture order, if it is granted, is against the property itself. Section 80 (2) gives the court no discretion but to grant a civil forfeiture order where the applicant proves, on a balance of probabilities, that the targeted property is tainted. In so satisfying the court, the applicant need not prove that the property was derived directly or indirectly, in whole or in part, from a particular serious offence or that any person has been charged in relation to such an offence or act, only that it is proceeds from some conduct constituting or associated with the serious offence (s 80 (3) (a)). In proving that property is tainted, it is not necessary to show that the property was derived from a specific serious offence as long as it is shown that it was derived from some serious offence (sec 80 (3) (c) (i)). A serious offence includes in terms of the definition section, a money laundering offence or an offence for which the maximum penalty is imprisonment for four years or more, with or without the option of a fine. Tainted property includes proceeds from or instrumentalities of the commission of a serious offence.</p> <p>            Counsel for the applicant submitted that the graphic details contained in the forensic  reports prove that the five vehicles were tainted property. They are instrumentalities of the commission of a serious offence or offences. It matters not whether the offence is either smuggling, car theft or some other serious offence. At the very least, the expert evidence reveals the commission of money laundering offences. It is unnecessary to show that it is the respondent who committed either the offences of smuggling, vehicle theft or laundered the proceeds of any of these or any other crime. All that is required  to prove that the vehicles are the proceeds of crime is to show that the vehicles are the proceeds of some kind of criminal activity. The falsification of the identities of the vehicles shows that the vehicles themselves were involved in some kind of criminal activity otherwise there would have been no need to materially alter their identities.</p> <p>            Finally, counsel argued that the facts of this matter fell within the provisions of s 8 (1) (b), (2), (3) and (5) of the MLPCA. I shall advert to these provision in analysing this matter.</p> <p>THE RESPONDENT’S SUBMISSIONS</p> <p>            I observe that the heads of argument and oral submissions presented by counsel for the respondent were not really helpful to the court.</p> <p>            For some unknown reasons, Mr Ngwerume chose not to focus on the application before the court. In this vein, it was not necessary to challenge the police to carry out criminal investigations into the matter involving the five motor vehicles with a view of preferring a specific criminal charge against the applicant. I am not sitting as a criminal court. This is an application for civil based forfeiture of property that is said to be tainted.</p> <p>            Likewise, it was not necessary to argue that the applicant, in bringing this application, is violating constitutionally entrenched property rights of the respondent. The MLPCA is law.</p> <p>            Counsel argued that there was no falsification of the identities of the vehicles. What was done was merely restoration of the corroded particulars of some of the vehicles. In respect of all the vehicles, the findings of the forensic scientist should not be relied on because applicant was never given an opportunity to explain what was said to be “tampering” with the identities of the vehicles.</p> <p>            All five vehicles were lawfully registered in terms of the VRLA. No provision   of this Act was either contravened by the respondent or reaches the threshold of a serious offense as defined in the MLPCA.</p> <p>            In conclusion, the applicant had failed to prove, on a balance of probabilities, that the five vehicles were tainted property.</p> <p>THE ANALYSIS</p> <p>            Respondent did not place any forensic evidence before me.</p> <p>            The result is that I have no reason not to accept, as correct, the expert evidence adduced by the applicant. This is so because this testimony has not been controverted by other expert evidence.</p> <p>            There can be no doubt that all the five motor vehicles had their identities altered in fundamental respects. A reading of the reports attests to this. In this regard I highlight some issues arising from the reports. The original chassis numbers in respect of all the motor vehicles could not be restored even when the vehicles were subjected to the forensic examination procedure called chemical etching. Ridges, furrows or linear marks (striation marks) now stand where the original chassis numbers were placed by the vehicles’ manufacturer. This is testament to force having been applied to remove the original chassis numbers. In respect of all the vehicles, there are now new chassis numbers. For the vehicle appearing as ADS 4104 the original chassis number was not only completely erased but a new one was dot punched at a different area of the vehicle. Despite bearing a new, and different chassis number, the vehicle now appearing as ADZ 4880 was resilient to the extent that remnants of the original chassis number, - ---- JH537341, were restored under the forensic examination. Yet, in applying for and obtaining approval for restoration not only of the engine but chassis number, the respondent had supplied the chassis number as IHTRLOOO85H652 998. This means the application for restoration of the chassis number was deceptive. Respondent cannot rely on the deception to resist forfeiture of this vehicle.</p> <p>            Respondent says it acquired from within Zimbabwe the vehicle now appearing as AEG 6695. This vehicle was not subject of an application for restoration of the engine and chassis numbers. On examination, the chassis frame bore the number IFUYDCYB9TP854634 on the area where the chassis number is normally located. But the sticker stamped on the near side door frame reflected the chassis number as IFUYDCYB2YP854636. These are different chassis numbers. To wipe out the discrepancy, the forensic scientist noted that the integers 9 and 4 on the chassis frame were obliterated and different integers, 2 and 6 were respectively punched above them. In addition, although what was being examined presented itself as a red vehicle, the forensic expert noticed that the original paint profile of the vehicle was white.</p> <p>            The vehicle appearing as ADS 0982 has suffered a lot. The examination revealed not one but two and in both instances incomplete rows of integers of chassis numbers. These are respectively, 6-1-60 and 2-1-2-93. That is not all. Both rows of incomplete chassis numbers are not only unaligned and unevenly spaced but are different from the vehicle identification number as reflected on the sticker near the side door frame: IFUYSDYB5WL970002. To cap it all, the vehicle was no longer white in colour but red. The known history of this vehicle, which respondent says it acquired locally, shows that it has had at least three different identities. Its triad of chassis numbers, two of which are incomplete, irresistibly bears this out.</p> <p>            Respondent applied for restoration of the chassis and engine numbers of yet another vehicle. The application, which was granted, bears the last integer of the chassis number not as “3” but as “5.” On examination, the last integer was “5”. The “B” and “H” letters had font that was bigger and uneven compared to the rest of the integers. The vehicle now appears as AEZ 0790.</p> <p>Section 8 of the MLPCA in relevant part, reads as follows:</p> <p>            “8. Money Laundering Offences</p> <ol> <li>Any person who converts or transfers property—</li> </ol> <ol> <li>that  he or she has acquired through unlawful activity or knowing, believing or suspecting that it is the proceeds of crime; and</li> <li>for the purpose of concealing or disguising the illicit origin of such property, or of assisting any person who is involved in the commission of a serious offence to evade the legal consequences of his or her acts or omission;</li> </ol> <p>commits an offence.</p> <p> </p> <ol> <li>Any person who conceals or disguises the true natural source, location, disposition, movement or ownership of or rights with respect to property, knowing or suspecting that such property is the proceeds of crime, commits an offence.</li> </ol> <p> </p> <ol> <li>Any person who acquires, uses or possesses property knowing or suspecting at the time of receipt that such property is the proceeds of crime, commits an offence.</li> </ol> <p> </p> <ol> <li>Participation in associating with or conspiracy to commit, an attempt to commit, and aiding, abetting, facilitating and counselling the commission of any of the offences referred to in subsections (1), (2) and (3) is also an offence.</li> </ol> <p> </p> <ol> <li>Knowledge, suspicion, intent or purpose required as elements of an offence referred to in subsection (1), (2), (3) and (4) may be inferred from objective factual circumstances.”</li> </ol> <p> </p> <p> </p> <p>            These provisions are very wide indeed. I have no doubt that the respondent is caught, on a balance of probabilities, within the ambit of one or more or all of these provisions. Respondent says it acquired and owns all these vehicles. Respondent took positive steps to tamper with the identities of two of the vehicles by purporting to restore their original chassis numbers. It proceeded to instruct Dan Panel Beaters, Harare, to punch chassis numbers different from the originals. I have no difficulty in finding, on a balance of probabilities, that all the five vehicles are lying about their true identities.</p> <p>            If some form of criminal activities were not involved, there would have been no need to interfere with the true identities of the vehicles by erasing their chassis numbers and punching different numbers in place thereof. There would have been no need to falsify the chassis numbers and change the colours of some of the vehicles. It seems to me that only some form of criminal activity, either known to or suspected by the respondent, explains the falsification of the identities of these vehicle. I make the inference from the objective factual conspectus reflected in the forensic reports. Further, Nzirawa and Mukura also say the following in their affidavits. The vehicle appearing as AEZ 0790 bore particulars of a different freight liner horse that was involved in an accident which resulted in it being burnt to ashes and was accordingly written off. The burnt horse was registered under AEU 2791 bearing engine number 11760181 and chassis number IFUYDMDB6544395. The owner of the vehicle applied for change of registration plates from AEU 2791 to AEZ 0790. The accident occurred on 10 March 2019 at the 46 km peg along the Harare-Nyamapanda Highway and was investigated under Murewa Traffic CR43/03/19 and Traffic Accident Book 112/19. The mystery is that in or about November 2019 the respondent applied for and obtained permission to restore the chassis number IFUYDMDB65H544395 (and the engine number) to an existing vehicle yet the vehicle which bore that chassis number had already been burnt to ashes.</p> <p>            A money laundering offence attracts a sentence not exceeding twenty five years imprisonment. Money laundering, smuggling and car theft are serious offences.</p> <p>            I am satisfied that the five vehicles have assumed false identities. They are proceeds of some kind of criminal activity. They are instrumentalities of the commission of some kind of criminal activity.</p> <p>            I am fortified in this regard by two decisions of the Supreme Court.</p> <p>            Mr Mutangadura referred me to <em>S </em>v <em>Mambo</em> 1995 (1) ZLR 50 (S). <em>Mambo</em> lost an appeal against conviction on a charge of contravening s 63 (1) (b) of the Serious Offences (Confiscation of Profits) Act, 90. This Act has been repealed by the MLPCA.</p> <p>            In <em>S</em> v <em>Mambo </em>(<em>supra</em>) MCNALLY JA, writing for the court, said the following at 52F-53D about the wide reach of the offence of money laundering:</p> <p>“The next point of law is whether the conduct found proved amounted to a contravention of the section.</p> <p> </p> <p>Mr Carter argued that the section requires the involvement of a third party. It is not an offence, he argues, to launder your own dirty money. You would have to launder someone else’s. Otherwise, a pickpocket who steals money, puts it in his POSB account, and then withdraws it to buy food, is guilty of money-laundering.</p> <p> </p> <p>I cannot accept this interpretation. It is true that the section is very widely stated. It is true that in many, if not most, cases charged under the section, the accused person might be equally successfully charged with theft or (as was the case here, in the alternative) with fraud. But that is no reason to limit the ambit of the plain meaning of the words used. There is no ambiguity. A pickpocket could be charged under the section for possessing the cash proceeds of his theft. It would be pointless to do so, because you would first have to prove that he had picked the pocket. So it is simpler to charge him with theft.</p> <p> </p> <p>The present case is a good example of a situation where the general picture is clear but the details are unclear, principally because the paid cheques have been destroyed. The appellant clearly masterminded the laundering. He may or may not have masterminded the fraud. The State may have felt it had a problem in proving misrepresentation.</p> <p> </p> <p>Accordingly it proceeded on the basis that he was guilty of laundering the proceeds of crime, whether that crime was his or someone else’s, or a joint effort.</p> <p> </p> <p>As long as it would be proved that he knew ‘or ought to have reasonably known that the money or other property was derived or realised, directly or indirectly, from the commission of an offence,’ it would succeed. Whether the main offence was his or someone else’s was immaterial. The court found, with respect, correctly, that he knew the cheques were stolen.</p> <p> </p> <p>I see no merit in the appeal against conviction.”</p> <p> </p> <p>            My research took me to the archives.</p> <p>           </p> <p>            In<em> Simon Chimbetu</em> v <em>The State </em>SC 107/92 the appellant lost an appeal against conviction and sentence on a charge of car theft. In <em>Chimbetu</em> (<em>supra</em>) MCNALLY JA with the concurrence of GUBBAY CJ and EBRAHIM JA said at pp 2 – 3 of the cyclostyled judgment:</p> <p>“The evidence against the appellant is wholly circumstantial. He was not the thief. The car was stolen in Bulawayo on 23 June 1990 by one Murehwa. It was parked the same day in the appellant’s yard in Harare by one Kazomba who absconded during his joint trial with the appellant.</p> <p> </p> <p>The appellant drove Kazomba on three occasions on 25 June 1990 to a spray painter’s premises where the stolen vehicle, a beige Peugeot 504 Sedan 353 – 279 Y, was being painted blue, so as to accord with the colour shown on the registration book in the appellant’s name which was obtained on 18 June 1990, two days before the theft in Bulawayo. The appellant, when challenged, produced this registration book as proof that the stolen vehicle was his. The book in fact related to a non-runner bought on 9 June 1990 at a CMED sale by Kazomba on behalf of the appellant. Before the stolen car was re-sprayed the windows had sand blasted on them the correct registration number of the stolen vehicle, which would not of course have accorded with the new registration number taken from the CMED non-runner. These windows were found in the appellant’s house…</p> <p> </p> <p>The appellant’s defence was that he had not seen the non-runner bought on his behalf by Kazomba… He thought the vehicle being re-sprayed at the garage was his non-runner from CMED…”</p> <p> </p> <p>In dismissing the appeal against conviction, HIS LORDSHIP said at p 3:</p> <p>“I am satisfied that the magistrate came to the only possible conclusion, namely, that the appellant was a party to the theft. He had conspired with the others, and part of the conspiracy was the purchase of the non-runner from CMED in order to provide a false identity for the stolen vehicle.” (my emphasis)</p> <p> </p> <p>I find that the five vehicles in the present matter were provided with false identities. They are not, on a balance of probabilities, the vehicles that the respective registration books present them to be. I find that some kind of serious criminal conduct, known to or suspected by the owner and possessor of these vehicles, the respondent, accounts for this position. Therefore, all the five motor vehicles are tainted property.</p> <p>Mr Mutangadura did not seek costs. He spelt out his reasons.</p> <p>In the result, the following order shall issue:</p> <ol> <li>The following motor vehicles are tainted property and are forfeited to the State:</li> </ol> <ol> <li>Freightliner Horse registered as AEZ 0790</li> <li>Freightliner Horse registered as ADS 4104</li> <li>Freightliner Horse registered as AEG 6695</li> <li>Freightliner Horse registered as ADS 0982</li> <li>International Horse registered as ADZ 4880</li> </ol> <ol> <li>Each party shall bear its own costs.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>National Prosecuting Authority</em>, applicant’s legal practitioners</p> <p><em>Ngwerume Attorneys At Law</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>           </p> <p> </p> <p> </p> <p>           </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/10/2021-zwhhc-10.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29023">2021-zwhhc-10.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/10/2021-zwhhc-10.pdf" type="application/pdf; length=360032">2021-zwhhc-10.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fundamental-rights">Fundamental rights</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/right-property">Right to property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fraud-0">Fraud</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/4">Money Laundering and Proceeds of Crime Act [Chapter 9:24]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 24 Mar 2021 15:15:13 +0000 Sandra 9981 at https://old.zimlii.org S v Kazhanje (HH 689-20, HACC (B) 23/20 REF HACC 582/19 REF CRB ACC 13/19) [2020] ZWHHC 689 (04 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/689 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>NYASHA STANLEY KAZHANJE</p> <p>versus</p> <p>THE STATE  </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>KWENDA J</p> <p>HARARE, 9,13,14 October 2020 &amp; 4 November 2020</p> <p> </p> <p> </p> <p><strong>Application for bail pending Appeal </strong></p> <p> </p> <p> </p> <p><em>H M Hashiti,</em>for applicant</p> <p><em>T Mapfuwa,</em>for respondent  </p> <p> </p> <p>            KWENDA J: On 30 August 2019 applicant was convicted in the Regional Court at Harare of corruptly concealing from a principal a personal interest in a transaction in violation of s 173(a) (1) of the Criminal Law Codification and Reform Act <em>[Chapter 9:23]</em>. He was sentenced on 3 September 2019 imprisonment for 3 years of which 2 years were suspended for 4 years on condition of good behaviour.            He appealed against both conviction and sentence on 3 September 2019 under HCCA 582/19. He then applied for bail pending appeal which he was granted under HH 631/19. In granting the applicant bail Tsanga Jobserved as follows at p 6 of the cyclostyled judgment:</p> <p>“The transaction which he [the appellant]is said to have concealed would logically have to have been in relation   to the proposed Gwanda Solar Project which was to be carried out by Intratek. That was materially        the subject matter of the transaction. It would seem to me unclear as to what transaction he carried out in relation to that project. There seems none at all. He may not have disclosed that he had interacted with Intratek in the past but it cannot be said on the basis of the facts that were argued that he had an interest in the subject matter of the transactions being the Gwanda Solar Project. Strictly speaking there was no evidence placed before the court a <em>quo</em>that he had a personal interest in the Gwanda Solar transaction.”</p> <p> </p> <p>            The applicant’s appeal against conviction and sentence was set down for argument on 23 September 2020. At the hearing applicant’s counsel conceded that the grounds of appeal were invalid for non-compliance with r 22 of the now repealed Supreme Court (Magistrate Court) Criminal Appeals Rules 1979. The rules were repealed by the Supreme Court rules, 2018 but have not been replaced. The practice and standards set by the repealed rules has been followed for 31 years and has become part of our common law as can be seen in several cases decided by this court. See <em>S</em>v <em>Mcnab 1980</em>(2) ZLR 280 (S), <em>S</em>v <em>Kwainona</em>1993 (2) ZLR 534, <em>S</em>v J<em>ack</em>1990 (2) ZLR 66. The appellant’s appeal was fatally defective and was struck off by the Criminal Appeals Court on the 23rdSeptember 2020 with the consent of appellant’s counsel. The applicant was not present when his appeal was determined. The record reveals a brief exchange between the Criminal Appeals Court per Chatukutaand Chikowero JJand counsel for the applicant when the court enquired of counsel whether he knew of the consequences of the striking off of the appeal. Counsel acknowledged that, the applicant’s bail had terminated and the applicant had an obligation to submit to custody to start serving his sentence. </p> <p>Counsel was correct. Bail is a contract entered into between an accused/convict in terms of which the accused/convict enters into a recognisance undertaking to do any of the things required in terms of his/her recognisance in exchange for his or her freedom. <em>See</em>Blacks Law Dictionary 8thEdition [2004] at page 426</p> <p>“2. The process by which a person is released from custody either on the undertaking of a</p> <p>surety or on his or her own recognizance. 3. Release of a prisoner on security for a future</p> <p>appearance; esp., the delivery of a person in custody to a surety &lt;the court refused bail for the</p> <p>accused serial killer&gt;. [Cases: Bail 39. C.J.S. Bail; Release and Detention Pending</p> <p>Proceedings§§ 2, 4–7, 31–32.] 4. One or more sureties for a criminal defendant &lt;the attorney</p> <p>stood as bail for her client&gt;. See BAILER(1).“As a noun, and in its strict sense, bail is the person</p> <p>in whose custody the defendant is placed when released from jail, and who acts as surety for</p> <p>defendant's later appearance in court.... The term is also used to refer to the undertaking by the</p> <p>surety, into whose custody defendant is placed, that he will produce defendant in court at a stated</p> <p>time and place.” 8 C.J.S. Bail § 2 (1988).”</p> <p>            The recognisance entered into by the bailed person is straight forward in before sentence. Before trial or sentence, the recognisance are usual the following: -</p> <p>            (i)        to appear and undergo further examination</p> <p>            (ii)       to counter any indictment or charge before a competent court</p> <p>            (iii)      to attend during the hearing of case and to receive sentence</p> <p>            (iv)      to accept service of summons or other notice of trial</p> <p>It is therefore easy to account for the bailed person. However, the situation is different in the case of bail pending appeal. The law does not make it compulsory for the appellant to appear at the hearing if he/she is legally represented. It is up to the appellant to exercise the right to be present. Several assumptions are made. Firstly, it is assumed the appellant’s counsel will communicate the outcome of the appeal to the appellant. There is no way of knowing whether that in fact happens. There is no express statutory provision obliging counsel to do so. Secondly, it is assumed that, following the dismissal of an appeal for any reason, the appellant will submit to custody to serve the sentence. In my view that assumption should be reconsidered in criminal matters. Thirdly, there is no clear guideline as to what is a reasonable time within which the unsuccessful appellant should hand himself/herself in to serve his/her sentence.</p> <p>In this case, instead of ensuring that the appellant submitted to custody as agreed at the appeal hearing on 23 September 2020, the applicant’s counsel gave priority to ensuring that the applicant remained out of custody. He filed a fresh bail application on the 24thSeptember 2020, the day following the date on which applicant’s appeal was struck off, under HACC (B) 21/20. He simultaneously, filed an application for extension of time within which to appeal which would give him an opportunity to file new and valid grounds of appeal. The applicant appeared before me for the bail application. His application for condonation and extension of time within which to appeal had not been determined. It was pending before another judge. I noticed that the applicant’s bail application was named “Application for bail pending appeal processes”. There is no procedure known as ‘appeal processes’ in the Criminal Procedure and Evidence Act <em>[Chapter 9:07. </em>The ambiguity must have been deliberate because the application could not be classified in any one of the situations described in section 123 of the Criminal Procedure and evidence Act [Chapter 9:07]. </p> <p>“<strong>123 Power to admit to bail pending appeal or review</strong></p> <p>(1) Subject to this section, a person may be admitted to bail or have his conditions of bail altered—</p> <p>(<em>a</em>) ………….;</p> <p>(<em>b</em>) in the case of a person who has been convicted and sentenced by a magistrates court and who applies for bail—</p> <p>(i) where the record of a case is required or permitted, in terms of section 57 or 58 of the Magistrates Court Act [<em>Chapter 7:10</em>], to be transmitted for review, pending the determination of the review; or</p> <p>(ii) pending the determination by the High Court of his appeal; or</p> <p>(iii) pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave;</p> <p>by a judge of the High Court or by any magistrate within whose area of jurisdiction he is in custody:”</p> <p>            There was therefore no legal basis for the application for bail pending what the applicant termed ‘appeal processes’ in HACC (B) 21/20. The dilemma which the applicant found himself in was that he could not name his application an application for bail pending determination of an appeal because his appeal had been determined <em>albeit</em>by way of being struck off. He could not name it an application for bail pending condonation and extension of time within which to appeal that again is not provided for. The applicant went as far as misleading the court that he was in custody. His Notice of appeal stated that “…. theapplicant (was) in custody.” At the hearing on 2 October 2020 I enquired whether the applicant was indeed in custody. Applicant’s counsel confirmed that the applicant was in custody and directed me to the portion of the draft Notice of Appeal which stated that the appellant was in custody. I was not satisfied. Accordingly, I ordered the State to verify the position and stood the matter down to 11.15 on the same day. When the matter came up again the State advised the court that the appellant was out of custody. Applicant’s counsel conceded that the appellant was indeed out of custody. Applicant’s counsel rose to submit that he had messages in his cell phone which had been sent to him in the past by the applicant, which proved that the applicant had handed himself in but neither the Police nor the court <em>a quo</em>had knowledge of the outcome of the appeal. I found the explanation unsatisfactory in the absence of documentation or correspondence by the legal practitioner to the Police or the trial court confirming that position. If counsel had been mindful of his undertaking to the Criminal Appeals Court following the determination of applicant’s appeal on 23 September 2020 he would have taken steps to ensure that the applicant submitted to custody before submitting a fresh bail application. </p> <p>The applicant had therefore remained out of custody unlawfully for ten days after his bail terminated. There was a clear attempt to manipulate a loophole in our bail system to keep the applicant out of custody on bail which had terminated until such time that his freedom is sanitised by another bail order. The draft order sought that the applicant be freed on the same bail conditions that obtained before his appeal was struck off. The applicant had not redeemed the bail amount in anticipation of its extension. In view of the fact that condonation and leave to file a fresh appeal was still pending, that there was no appeal pending before this court and that the appellant was out of custody I ruled that the bail application before me on 2 October 2020 under HACC (B) 21/20 was unprocedural. I proceeded to strike it off with the consent of both the State and applicant’s counsel. </p> <p>The circumstances of the bail application filed by the applicant under HACC (B) 21/20 expose a loophole in our bail system with regards to bail pending appeal. All criminal processes from initial appearance in the Remand court up to sentence which require the presence of the person charged to be dealt with in accordance with the law. The situation ironically changes when bail is granted after conviction and sentence at a time when the presumption of innocence falls away. For some reason the system of bail pending appeal is based on utmost good faith. Sections 29 and 50 of the High Court Act <em>[Chapter 7:06] </em>contemplate that criminal reviews and appeals can be determined in the absence of the convict/appellant. </p> <p>            “<strong>50 Right of person to be present at hearing of his trial, action, application or appeal</strong></p> <p>(1) Every person, subject to subsection (2), shall be entitled to be present if he so desires at the hearing of his trial, action or appeal by the High Court or any application made by him to the High Court under this Act or rules of court.</p> <p>(2) A person who is in custody, whether he is legally represented or not, shall not be entitled to be present at the hearing of his appeal by the High Court or any application made by him to the High Court in connection with his appeal without the leave of a judge of the High Court.</p> <p>(3) The right of a person who is in custody to be present at the hearing of any matter referred to in subsection</p> <p>(2) shall be subject to his paying all expenses of and incidental to his transfer to and from the place where the High Court sits:</p> <p>Provided that a judge of the High Court may direct that he be brought before the High Court in any case where, in the opinion of the judge, his presence is advisable, in which event such expenses shall be defrayed out of moneys appropriated for the purpose by Act of Parliament.</p> <p>(4) A person who does not appear himself or who is not legally represented may present his case and argument to the High Court in writing, and any case or argument so presented shall be considered by the High Court.</p> <p>(5) The power of the High Court in the exercise of its appellate jurisdiction to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present.</p> <p>yet the presumption of innocence falls away upon conviction. </p> <p>The law does not impose express statutory obligations on the appellant or his/her legal practitioner following the determination of the appeal. While bail is terminated by the determination of an appeal, in practice, the unsuccessful appellant retains his/her freedom. The Criminal Appeals court has no control over what transpires after the determining an appeal. In practice the record is transmitted back to the station of origin where a warrant of arrest is issued. The warrant of arrest issued by the court of origin is submitted to the Police for execution. There are no systems audit mechanism to ensure that the convict is accounted for. That should not be necessary if one takes into account the implications of the recognisance entered into by the applicant at the time of admission to bail pending appeal. It could be more effective for the Criminal Appeals Court which dismisses an appeal for any reason to expressly order the appellant to appear before the court <em>a quo </em>within a specified number of days for committal. However as observed above the powers of this court on appeal are confined to determining the appeal. See section 38 of the High Court Act <em>[Chapter 7:06]</em></p> <p><strong>            38 Determination of appeals in ordinary cases</strong></p> <p>            (1) Subject to this section and section <em>thirty-nine</em>, on an appeal against conviction the High Court shall allow the appeal and quash the conviction if it thinks that the judgment of the court or   tribunal before which the appellant was convicted should be set aside—</p> <p>            (<em>a</em>) on the ground that—</p> <p>            (i) it is unreasonable; or</p> <p>            (ii) it is not justified, having regard to the evidence; or</p> <p>            (<em>b</em>) on the ground of a wrong decision on any question of law; or</p> <p>            (<em>c</em>) because on any other ground there was a miscarriage of justice;</p> <p>            and in any other case shall dismiss the appeal.</p> <p>            (2) Notwithstanding that the High Court is of the opinion that any point raised might be decided   in favour of the appellant, no conviction or sentence shall be set aside or altered unless the High         Court considers that a substantial miscarriage of justice has actually occurred.</p> <p>            (3) ………….”</p> <p>In my view the gap in the law can best be addressed by the bail court which is at large to impose any bail condition on a case by case basis. The bail court may therefore, depending on the peculiarities of the particular case, impose a condition which either requires the appellant to be present at his appeal or to surrender himself/herself within a specified period in the event that his/her appeal is dismissed for any reason. </p> <p>This court has on numerous occasions dealt with applications for condonation and execution of time within which to appeal by persons who remained out of custody after their appeals had been determined by either being struck of the roll or dismissed for want of prosecution. Such applications by fugitives should not be entertained. The system also falls short in that once a convicted person is admitted to bail there is no mechanism to ensure that he/she prosecutes his/her appeal timeously. The applications for condonation and extension of time within which to appeal are usually filed when persons whose appeals would have been dismissed realise that the Police are in hot pursuit. The legal provision based on utmost good faith is ancient and out of sync with current realities. You do not get any person handing himself or herself in after losing an appeal. I have had to make the above observations because in this case the applicant remained unaccounted for, for ten days and the State was not even aware. It is the responsibility of the State and not this court to follow up execution of its judgments. The function of this court ends with the determination of a matter. The State must therefore put in place a mechanism to ensure that the judgments of this court on appeal are executed so that the criminal appeals system does not fall into disrepute.</p> <p>            The applicant handed himself to custody on the 2ndOctober 2020 at my behest. He remains in custody. His application for condonation and extension of time within which to appeal was granted on the 5thOctober 2020 by chatukuta jHe then filed the present bail application on the 7thOctober 2020. The application is opposed by the State on the grounds that the appeal based on the new grounds of appeal against conviction and sentence lacks merit. I do not agree with the State because the issues raised by the appeal remain the same the only difference being that the wording has been revisited. The remarks by tsanga jwhen she initially granted the applicant bail are still relevant on the aspect of prospects of success.</p> <p>At the hearing of this application I disclosed to appellant’s counsel my reluctance to re-admit the applicant bail pending appeal in view of his prior conduct and reluctance to hand himself in when his appeal was determined. Applicant’s counsel suggested that I could impose the condition requiring the applicant to be present at the determination of his appeal. That discretion is implicit in s 50 of the High Court Act which empowers the Appeals Court to order the presence of the appellant if it deems it in the interests of justice. In the event that judgment is reserved at the appeal hearing the court can exercise its discretion to extend appellant’s freedom.</p> <p>I will exercise my discretion in the applicant’s favour and admit him to bail in light of the following: -</p> <ol> <li>tsanga j, has already determined that the appellant has an arguable case on appeal. </li> <li>The applicant was previously on bail pending appeal in the same case and he did not abscond.</li> <li>He has been granted condonation and leave to file a fresh appeal and the new grounds are in compliance with the law.</li> <li>He handed himself in when the court required him to do so and he is now in custody.</li> <li>The apprehension arising from his past conduct can be catered for by a condition requiring his presence at his appeal.    </li> </ol> <p>In the result the applicant is granted bail pending appeal admitted to bail pending appeal in </p> <p>terms of the draft as amended</p> <p> </p> <p><em>Mhishi Nkomo Legal Practitioners </em>Applicant’s legal Practitioners</p> <p><em>Prosecutor General </em>Respondent’s Legal Practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/689/2020-zwhhc-689.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27926">2020-zwhhc-689.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/689/2020-zwhhc-689.pdf" type="application/pdf; length=145775">2020-zwhhc-689.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pending-appeal-bail">pending appeal for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Tue, 24 Nov 2020 08:25:09 +0000 Sandra 9942 at https://old.zimlii.org Moyo v Dzira & Anor (HB 212-20, HC 1431/20) [2020] ZWBHC 212 (30 September 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/212 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>JOSIAS MOYO </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>MARK DZIRA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>NATIONAL PROSECUTING AUTHORITY</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>KABASA J</p> <p>BULAWAYO 15 SEPTEMBER &amp; 30 SEPTEMBER 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>N. Sithole</em>for the applicant</p> <p>No appearance for 1strespondent</p> <p><em>B. Maphosa</em>for the 2ndrespondent</p> <p>            <strong>KABASA J:   </strong>This is an urgent chamber application wherein the applicant seeks the following interim relief:-</p> <p>“Pending the determination of applicant’s applications for review filed under cover of case numbers HCR 1141/20 and HCR 1423/20, proceedings in the case under cover of  case number CRB BYO R 83/20 be and are hereby stayed.</p> <p> </p> <p>            In the event that the interim relief is granted, the final order sought is:-</p> <p> </p> <p>“          Applicant’s case, proceeding under cover of case number CRB BYO R 83/20 having been reviewed and set aside in HC 1423/20, proceedings in CRB BYO R 83/20 be and are hereby permanently stayed.”</p> <p>            I propose to give a background to the matter for purposes of clarity.  The background is this.  The applicant appeared before the 1strespondent, a Regional Magistrate at Bulawayo Magistrates Court, charged with 12 counts of fraud.  The allegations being that he acted as a clearing agent for the complainant, a managing director of a company which sells motor spares and accessories.  The company would import goods and the applicant was supposed to pay duty for these goods to the Zimbabwe Revenue Authority (ZIMRA).  The complainant would deposit the money for payment of import duty to the applicant who was to process the relevant clearance papers before the goods found their way to the complainant. This happened over a period of time.</p> <p>            The complainant’s consignment of goods was later impounded because it had not been properly cleared.  An investigation subsequently unearthed that the bills of entry relating to goods imported on 12 different occasions were not authentic.  ZIMRA had not been paid the requisite duty from the deposits the complainant had made into the applicant’s bank account.</p> <p>            The applicant was then charged with 12 counts of fraud to which he pleaded not guilty.  A total of 9 witnesses were called to testify, among them a bank official who had initially not been on the list of witnesses the State intended to call.  The bank official was called in order to produce the bank statements the police had obtained reflecting the deposits the complainant had made into the applicant’s bank account. The state had intended to have the bank statements produced through the investigating officer but the defence objected necessitating the calling of an official from the bank.</p> <p>            The bank official was called despite the defence’s objections to the calling of this witness, which objection was premised on the fact that such witness had not been lined up as one of the state witnesses and the 1strespondent was essentially allowing the prosecution to “investigate” as the trial progressed.</p> <p>            The defence felt strongly about the “procedural irregularity” and filed a review application to this court under case number HC 1141/20.  The trial progressed up to the close of the State’s case, whereupon the defence applied for discharge in terms of s198 (3) of the Criminal Procedure and Evidence Act, Chapter 9:07.  This provision states that:</p> <p>“If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”</p> <p>            The applicant’s defence counsel had moved for the discharge of the applicant on the basis that the essential elements of the offences had not been proved and the applicant’s defence to the charges had not been rebutted.  The application did not find favour with the 1strespondent who proceeded to dismiss it and put the applicant to his defence.</p> <p>            Aggrieved, the applicant filed a second review application to this court under case number HC 1423/20.  In it the applicant seeks the setting aside of the 1strespondent’s decision and an acquittal.  The contention being that by putting the applicant on his defence, 1strespondent has placed the onus on the applicant to prove his innocence.</p> <p>            The present application seeks to halt the proceedings before the 1strespondent pending the hearing and determination of these review applications.</p> <p>            Has the applicant made a case for the relief be seeks?  In an endeavor to answer this question I will consider the requirements to be met in an application of this nature.</p> <p>            As regards urgency I decided to allow the applicant to jump the queue and hear the matter on an urgent basis.  I arrived at this decision based on the argument that the applicant was being subjected to irregularities which threatened his right to a fair trial and  stood to be  extremely prejudiced thereby warranting a hearing on an urgent basis.  He acted without delay when the need to so act arose. (<em>Kuvarega</em>v <em>Registrar General &amp; Another</em>1998 (1) ZLR 188 (HC)).</p> <p>            I therefore was persuaded to grant him the indulgence of hearing the matter on an urgent basis.</p> <p>            I turn now to consider the requirements to be met for the applicant to get the relief he seeks. These requirements have been stated in a plethora of cases, <em>Setlego</em>v <em>Setlego</em>1914 AD 221; <em>Lilian Ihekwoaba</em>v <em>Chief Immigration Officer &amp; 2 Others</em>HH-229-11;<em>Gold Reef Mining (Pvt) Ltd</em>v <em>Mnjiva Consulting Engineers (Pty) Ltd and Another</em>HH-631-15 and <em>Magaritha </em>v <em>Munyuki &amp; 2 Others </em>HH-44-18.</p> <p> </p> <p>            The requirements are:-</p> <ol> <li>A <em>prima facie</em>right, even if it be open to doubt</li> <li>A well grounded apprehension of irreparable harm if the relief is not granted</li> <li>The balance of convenience favouring the granting of the interdict</li> <li>The absence of any other satisfactory remedy</li> </ol> <p>I asked counsel for the applicant to address me on these requirements notwithstanding the State’s attitude to the application.  State counsel had initially intimated that the application was opposed and sought a number of postponements in order to read the record of proceedings and file opposing papers but on the date of hearing had a <em>volte face</em>and submitted that the application was no longer opposed.</p> <ol> <li><strong>A <em>prima facie</em>right</strong></li> </ol> <p>Counsel for the applicant submitted that the applicant’s trial rights are under siege and there is need to protect his rights to a fair trial.</p> <p>            S69 of the Constitution guarantees the right to a fair trial.  To the extent that the applicant expresses the fear that the conduct of the proceedings pose a threat to this right and given that all he has to establish is a <em>prima facie</em>right, although open to doubt, I would hold that such <em>prima facie</em>right has been established.</p> <p>            I must state that these requirements are not to be considered in isolation but as a whole, in other words conjunctively as opposed to disjunctively (<em>Magaritha</em>v <em>Munyuki supra</em>). I move on to the second requirement.</p> <ol> <li><strong>A well grounded apprehension of irreparable harm</strong></li> <li> </li> </ol> <p>“The power of the High Court to review the proceedings in the Magistrates Court is exercisable even where the proceedings in question have not yet terminated.  However, it is only in exceptional circumstances that the court will review a decision in an interlocutory decision before the termination of the proceedings.  It will do so only if the irregularity is gross and if the wrong decision will seriously prejudice the rights of the litigant or the irregularity is such that justice might not by other means be attained.”</p> <p>            There must be very good cause shown before this court steps in to interfere with proceedings before the Magistrates’ Courts.  As MATHONSI J (as he then was) eloquently put it in <em>Elizabeth Shava</em>v <em>Primrose Magomore N.O. and Another</em>HB-100-17.</p> <p>“The net effect of such an approach is really to render in-effectual the jurisdiction of the Magistrates’ Court to try offenders and to sit in judgment over such matters.”</p> <p>The applicant <em>in casu</em>argues that to allow the trial to continue will be tantamount to sanctioning illegalities.  The applicant could appeal but such would not provide a complete cure of the harm as he would have sacrificed resources with his liberty continuing to hang in the balance when such a burden should be terminated.  Does this make for exceptional circumstances warranting a departure from the general rule that the superior courts should be very slow in interfering with unterminated proceedings?</p> <p>            The most that will happen <em>in casu</em>is that the applicant maybe convicted.  His fate does not however end with the decision of the 1strespondent as the applicant has a right to seek either a review or note an appeal.</p> <p>            The decision to allow the calling of the bank official was made after the 1strespondent reasoned that:</p> <p>“The defence was served with the bank statement.  They already know its contents.  The state argued that they want to call a bank official at ZB Bank solely for the purposes of tendering the bank statement.  In the court’s view the accused will not be prejudiced if the witness is called.  Whether the state decide (<em>sic)</em>to call the bank manager or his/her deputy or a bank teller, in the court’s opinion the deference (<em>sic</em>) is the same there is no need for a statement from the witness as in the court’s view this witness is specifically to talk about the document only.”</p> <p>            Such reasoning can hardly be construed to reflect bias on the part of the 1strespondent. The argument that the 1strespondent was bent on aiding the state against the accused/applicant in order to convict the applicant is not borne out by this reasoning.</p> <p>Equally, it can therefore not be said the applicant has a well grounded apprehension of irreparable harm if an interdict is not granted to halt the proceedings before the 1strespondent.  As regards the refusal to discharge the applicant at the close of the state case, the 1strespondent had this to say.</p> <p>“The accused’s version is that after receiving the money from the complainant he would hand it over to Alpha Mashingaidze for the purposes of declaring the goods.  He would then receive bills of entries from Alpha Mashingaidze and transfer them to the accused person (complainant?).  He argued that he never did anything wrong with the papers he received.</p> <p>In the court’s view the accused has a case to answer.  He should be placed to his defence to explain in full how the money received from the complainant was used. While he handed over the money to Alpha Mashingaidze he still remained accountable for the use of that money.  He was supposed to ensure that duty is paid after due process was done.”</p> <p>Can it be said this reasoning amounts to a gross irregularity that vitiates the proceedings and therefore lead to a miscarriage of justice that cannot be redressed by any other means?  I think not.</p> <p>That said, it cannot be said the review applications will undoubtedly succeed thereby making it imperative to halt the trial before its conclusion.</p> <p>The “irreparable harm” of possible loss of  liberty should a conviction ensue and the sacrificing of resources in paying for the services of a legal practitioner does not, in my view, meet the mark of exceptional circumstances justifying the halting of the trial pending the hearing of the review applications.</p> <p>“The general rule is that a superior court should intervene in uncompleted proceedings of the lower court only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant” (per MALABA JA in <em>Attorney-General</em>v Makamba2005 (2) ZLR 54 at 64C-E).</p> <p>            With this general rule in mind I hold the view that there is no well grounded apprehension of irreparable harm if the relief is not granted.</p> <ol> <li><strong>The balance of convenience favouring the granting of the interdict</strong></li> </ol> <p>The State case has closed and the defence case is set to open at the resumption of the trial set for 1stOctober 2020. This is a trial that is almost complete and the judicial officer should be allowed to see the trial to its logical end.</p> <p>“It is trite that judges are always hesitant and unwilling to interfere prematurely with proceedings in the inferior courts and tribunals.  In the ordinary run of things inferior courts and tribunals should be left to complete their proceedings with the superior courts only coming in when everything is said and done at that level. (per BHUNUJ (as he then was) in <em>Munyaradzi Chikusvu</em>v <em>Magistrate T. Mahwe</em>HH-100-15)</p> <p>            The balance of convenience favours allowing the 1strespondent to proceed with the trial to its logical conclusion.  Care must be taken not to unnecessarily shackle magistrates by interfering with the exercise of their judicial powers in a manner that may result in an unfortunate erosion of their confidence to the detriment of the justice delivery system.  They should be allowed to render judgments rightly or wrongly and the hierarchical corrective system provided by the court structure should be trusted to come in and effect whatever correction that is required.</p> <p>            I therefore hold that the balance of convenience does not favour the granting of the interdict sought by the applicant.</p> <p> </p> <p> </p> <ol> <li><strong>The absence of any other satisfactory remedy</strong></li> </ol> <p>I have already alluded to the fact that at the conclusion of the trial the applicant is not rendered remedy-less.  Whatever irregularities that are found to have afflicted the proceedings, such can be addressed by way of appeal or review.</p> <p>If the 1strespondent is shown to have been wrong in allowing the calling of the bank official for purposes of producing the bank statements and also wrong in coming to the decision not to discharge the applicant at the close of the state case, the superior courts will correct that.</p> <p>It cannot be said whatever irregularities that occurred, if any, are such that they cannot be addressed on appeal or review at the conclusion of the trial. Consequently it cannot be said there is no other satisfactory remedy except the granting of the interdict.</p> <p>I am equally not persuaded to grant the interdict on the basis that if I do not, the pending review applications will be rendered nugatory. Given the general rule as regards interference with unterminated proceedings by superior courts, it cannot be said the review applications are guaranteed to succeed.</p> <p>With that said, the answer to the question I earlier on posed as to whether the applicant has made a case for the relief sought is NO.</p> <p>I do not intend to make an order for costs.  I do not think this is a case that warrants such an order and the 2ndrespondent did not ask for costs either.</p> <p>In the result, the application is accordingly dismissed.</p> <p> </p> <p><em>Ncube Attorneys</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/212/2020-zwbhc-212.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26623">2020-zwbhc-212.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/212/2020-zwbhc-212.pdf" type="application/pdf; length=138825">2020-zwbhc-212.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/discharge-close-state-case">Discharge at close of State case</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/taxes">Taxes</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review-0">Application for review</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Tue, 10 Nov 2020 13:27:35 +0000 Sandra 9898 at https://old.zimlii.org S v Chikukwa (SC 75-20, Criminal Appeal No. SC 661/18) [2020] ZWSC 75 (24 October 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/75 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (65)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>ARTHUR     CHIKUKWA</strong></p> <p><strong>v</strong></p> <p><strong>THE     STATE</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA, HLATSHWAYO JA &amp; MAKONI JA</strong></p> <p><strong>HARARE:     24 OCTOBER 2019</strong></p> <p> </p> <p> </p> <p> </p> <p>Appellant In Person</p> <p>Mr <em>Mapfuwa</em>, for the respondent</p> <p> </p> <p> </p> <p>                        <strong>MAKONI JA:</strong>           This is an appeal against the whole judgment of the High Court dated 3 October 2016.  After hearing argument in the matter, we allowed the appeal and made the following order:</p> <ol> <li>The appeal be and is hereby allowed.</li> <li>The judgment of the court <em>a quo</em> is set aside and is substituted with the following, “The accused is found not guilty and is discharged.”</li> </ol> <p> </p> <p>We indicated that the reasons would follow. These are they.</p> <p> </p> <p>On 3 October 2016 the appellant was convicted of the offence of fraud as defined in s 136 (a) and (b) of the Criminal Law (Codification to Reform) Act [<em>Chapter 9:23</em>] and Money Laundering as defined in s 8(3) of the Money Laundering And Proceeds of Crime Act [<em>Chapter 9:24</em>]. For purposes of sentence, both counts were treated as one and he was sentenced as follows:</p> <ol> <li>“10 years imprisonment of which 2 years are suspended for 5 years on condition the accused is not convicted of any offence of which dishonesty is an element for which he is sentenced to imprisonment without the option of a fine.</li> <li>4 years imprisonment is suspended on condition the accused pays restitution of US$225 000.00 to the complainant through the Registrar of this court by no later than 31 December, 2017.</li> <li>Effective prison term to be served is 4 years imprisonment.</li> <li>An order of compensation is hereby granted to the complainant, Light Glass Enterprises (Pvt) Ltd in terms of s 362 of the Criminal Procedure &amp; Evidence Act, [<em>Chapter 9:07</em>] in the sum of US$54 118.57.”</li> </ol> <p> </p> <p>The court <em>a quo</em> found that the appellant on a date unknown but during the month of July 2014, whilst purporting to represent Rock Rabbit Investments (Private) Limited (Rock Rabbit Investment), approached the complainant, Robert Mhlanga, representing Light Glass Enterprise (Private) Limited (Light Glass) and sold a mining concession under Special Grant 5341 in the name of Rock Rabbit Investments.  The complainant and the appellant entered into a verbal agreement of sale of the mining concession. The complainant offered to pay in cash and in kind in the form of an immovable property and two motor vehicles (the property). The total purchase price was the sum of USD2 775 000.00 (two million seven hundred and seventy five dollars).</p> <p> </p> <p>In November 2015 when the complainant attempted to commence operations, he discovered that the appellant had no authority to dispose of the concession under Special Grant 5341. A report was made to the police and the appellant was arrested.  The total prejudice was USD2 775 000.00 and nothing was recovered.</p> <p> </p> <p> </p> <p> </p> <p>PROCEEDINGS BEFORE THE COURT <em>A QUO</em></p> <p>                        Before the court <em>a quo</em>, the respondent led evidence from three witnesses. These were, Robert Mhlanga, the complainant, Mr Salim Suleman Desai, a legal practitioner and Mr Hai Zhang, a director of Rock Rabbit Investment (Private) Limited.</p> <p> </p> <p>Robert Mhlanga’s evidence was that the appellant had misrepresented that he was a director of Rock Rabbit Investments (Private) Limited and had a mandate to sell or deal in the Special Grant 5341 issued to Rock Rabbit Investments. This induced him, in his capacity as the director of Light Glass (Private) Limited, to enter into a verbal agreement with the appellant on behalf of the company. He left the details of the agreement, particularly the legalities and the consummation of the agreement, to his lawyer, Mr Desai.</p> <p> </p> <p> It was his further evidence that the property was to be released to the appellant upon the production of title to the concession and a geological report detailing the quantities of the available coal. </p> <p> </p> <p>Next to testify was Mr Desai. He is a legal practitioner with Desai &amp; Associates. He engaged the accused in connection with the sale of the mining concession and was given some documents which included <em>inter alia</em>, the Special Grant 5341 issued to Rock Rabbit Investments by the Minister of Mines, a letter from the Chairman of the Mining Affairs Board addressed to the Directors of Rock Rabbit Investments to which was attached the Special Grant and the appellant’s passport.  He in turn handed over the property forming part of the purchase price of the mining concession to the appellant.  He then requested for the company registration documents and the geological report.  The appellant promised to produce the documents, but however failed to produce these despite numerous requests, phone calls and meetings.  He then demanded return of the property from the appellant who failed to do so.  He thereafter made a report to the police. </p> <p> </p> <p>Mr Zhang Hai is a director of Rock Rabbit (Private) Limited together with his father. He testified that he engaged the appellant as a consultant to apply for a Special Grant to mine coal in the name of Rock Rabbit Investments. The application was successful and they were granted Special Grant 5341. That was the only assignment that he asked the appellant to do on behalf of Rock Rabbit Investments. He produced company documents in the form of CR14 and CR6 which reflected the directorship of Rock Rabbit Investments. It was his further evidence that he never asked appellant to act on behalf of Rock Rabbit Investments in a transaction with Light Glass. On being asked whether the appellant owned 60 per cent shareholding in Rock Rabbit his response was, ”That would be funny.  It’s not possible at all.” He did not elaborate further.</p> <p> </p> <p>  Under cross examination, the witness however agreed that in his statement to the police he had stated that appellant initially came as a consultant but he had verbally agreed that he be appointed a director of Rock Rabbit Investments.  He also agreed that in the same statement he stated that the appellant was one of the directors of Rock Rabbit Investments.  He denied that he had used the appellant in other transactions. Upon being shown proof that he had mandated the appellant to identify investors to exploit another Special Grant, he admitted penning the document.  He however explained that he only engaged him as a consultant.</p> <p> </p> <p>At the close of the State case, the appellant unsuccessfully applied for discharge in terms of s 198(3) of the Criminal Procedure and Evidence Act Chapter. As a result, he was put to his defence.</p> <p>                        The appellant’s case was that he did not approach Robert Mhlanga intending to sell the Special Grant but was looking for an investor who could invest USD15 000 000.00 into the project.  The money would be used for exploration and to set up the mine.  Robert Mhlanga counter proposed that he buys a controlling stake of 60 per cent in the shareholding of Rock Rabbit Investments in the sum of USD8 000 000.00.  Robert Mhlanga did not have adequate funds and as a result offered to pay using the immovable property and the motor vehicles. This left a balance of USD 910 000.00. The companies’ lawyer, Mr Desai, paid the other USD100 000.00. With regard to obtaining the geological report as a condition of the sale, the appellant contended he needed money in order to process and obtain the report. He had used part of the money he received to pay one Nyandoro who had introduced him to Robert Mhlanga.</p> <p> </p> <p>                        It was his case that because of its change of fortunes, the complainant resorted to using the police to resile from the agreement.  It wanted to walk away from the agreement since it did not raise the capital required to move the project forward.</p> <p> </p> <p>                        He conceded that he did not appear in the company records of Rock Rabbit Investments as a director as he was appointed as a director verbally by Mr Zhang.</p> <p> </p> <p>                        On the basis of the evidence that was led before it, the  court <em>a quo</em> found that the appellant had misrepresented that he had a mandate to sell or deal in Special Grant 5341 issued to Rock Rabbit Investments and that he was a director of Rock Rabbit Investments. In this regard, it found that Mr Zhang had no motive to lie that the accused was not a director of Rock Rabbit.  It was satisfied that Mr Zhang had engaged the appellant only as a consultant to assist him to obtain the Special Grant.</p> <p>                        The court also found that once the appellant received the property and the money in issue through engaging in an activity of a criminal nature, the property became proceeds of a crime.</p> <p> </p> <p>                        It consequently found the appellant guilty and sentenced him as outlined above.  Aggrieved by the conviction and sentence the appellant filed the present appeal.</p> <p> </p> <p>THE APPEAL</p> <p>                        Notwithstanding that the appellant raised five grounds of appeal, this Court took the view that he was basically attacking the propriety of the conviction and the severity of the sentence.</p> <p> </p> <p>SUBMISSION BEFORE THIS COURT</p> <p>                        The matter was initially set down on 11 October 2019. When the appellant, a litigant in person, was called upon to address the court in connection with an application for condonation for late filing of Heads of Argument made by the respondent, he launched into an attack on the criminal justice delivery system in Zimbabwe and on the judicial officer who presided over his matter in the court <em>a quo</em>.  He raised serious allegations of impropriety on the part of the presiding officer. </p> <p> </p> <p>                        Since his utterances appeared out of turn and did not relate to the matter before the court, the matter was stood down to chambers wherein he was advised that the matter was to be postponed to enable him to raise his concerns with the administration of the judiciary.</p> <p> </p> <p>At the resumed hearing of the matter, the appellant contended that the conviction was not sustainable as the State had failed to establish the essential elements of fraud beyond a reasonable doubt.</p> <p> </p> <p>                        Mr <em>Mapfuwa</em>, for the respondent, submitted that the court <em>a quo</em> was correct in convicting the appellant. It was his further submission that the appellant had misrepresented that he owned Rock Rabbit Investments to Mr Mhlanga and had made the same misrepresentation to Mr Desai. The misrepresentation was revealed by the testimony of Mr Zhang who testified that the appellant was not a director of Rock Rabbit Investments.</p> <p> </p> <p>                        Mr <em>Mapfuwa</em> was engaged by the court as to the exact nature of the misrepresentation which the State alleged was made by the appellant. This was because the allegations were not clear. The charge sheet alleged that the appellant misrepresented that he had a coal mining concession in Tuli under Special Grant 5341 in the name of Rock Rabbit Investments and that he had a mandate to sell the special grant. Thus, the  allegations against the appellant from the manner in which the charge was framed was that he misrepresented that he had mining concession  in the name of Rock Rabbit (Private) limited which he was authorised to sell.</p> <p> </p> <p>The court <em>a quo</em> correctly identified the issue that fell for its determination in the trial <em>a quo</em>. It was whether the appellant was authorised to deal with the mining concession. Whether the appellant was a director of Rock Rabbit or had shares in the company, was not the dispositive issue in the matter.</p> <p> </p> <p>As the <em>ratio</em> for its decision to convict the appellant, the court <em>a quo</em> found as indicated above, that the respondent had proved beyond reasonable doubt that the appellant had misrepresented that he had the authority to deal with the mining concession.</p> <p> </p> <p>In coming to its conclusion, the court <em>a quo</em> relied on the evidence of Mr Zhang to the effect that the appellant was not a director of Rock Rabbit Investment (Private) Limited and had only been engaged by that company as a consultant.</p> <p> </p> <p>                        Mr <em>Mapfuwa</em> conceded that there were inconsistencies, which he termed ‘minor’, in the evidence of Mr Zhang.  On being asked by the court whether the court <em>a quo</em> was alive to these minor inconsistencies, his response was that seeing that the conviction was based on the evidence of an unreliable witness, Mr Zhang, the conviction might not have been safe.</p> <p> </p> <p>                        The concession made by Mr <em>Mapfuwa</em> is proper.  It is clear from the record that there were some material inconsistencies in the evidence of Mr Zhang.  In his evidence in chief he was categorical that he only engaged the appellant as a consultant to help him obtain the Special Grant 5341.  He had no further dealings with him. He even ridiculed the appellant’s suggestion that he was a director of Rock Rabbit Investments.  Under cross examination, it became apparent that he had not told the truth regarding his dealings with the appellant. A document he authored was produced indicating that he had also engaged the appellant and two others to be his agents for “the sole and exclusive purpose of seeking and, identifying any prospective partners and investors to jointly exploit and finance the exploration and other mineral resources to which Special Grant 5324, Gweru Mining District.”  The document is dated 17 May 2016 some two years after the Light Glass debacle.  It was the appellant’s case that the mandate given in respect of Special Grant 5324, is the same mandate that he got in respect of the Special Grant 5341. It further confirmed the appellant’s version that he (Mr Zhang) had verbally appointed him as a director of Rock Rabbit Investments.  This fact also appears in Mr Zhang’s statement which he made to the police.  He told the police that the appellant was a director of Rock Rabbit Investments.</p> <p> </p> <p>                        What is also apparent from the record is that the court did not assess the credibility of the witnesses appearing before it especially that of Mr Zhang on whose evidence the sole issue in the matter turned. All that it said about this witnesses’ evidence is that he had no motive to lie as against the appellant. It did not give any cogent reasons for its belief. From summarising the evidence of the witnesses the court <em>a quo</em> proceeded to make findings of fact and then the conclusion that the appellant was guilty. It did not assess the credibility of any of the witnesses.</p> <p> </p> <p>The effect of a courts’ failure to make findings on the credibility of witnesses has been laid out in several cases. In <em>Mazorodze v The State,</em> the court remarked thus:</p> <p>“The respondent did not comment on the credibility of witness for the prosecution.  It left that matter totally unaddressed.  The appellant’s criticism of the court <em>a quo</em>’s proceedings on the mentioned aspect has merit.</p> <p> </p> <p>Credibility of witnesses lies in the domain of the trial court.  The appeal court does not, as a matter of principle, interfere with the court a quo’s findings in respect of credibility of witnesses.  (See Beckford v Beckford, 2009 (1) ZLR 271 (S))</p> <p>...there are occasions when an appeal court may interfere with the court <em>a quo</em>’s reasoning on the issue of credibility of witnesses who will have testified before it. One such occasion is where, as <em>in casu</em>, the court <em>a quo</em> does not make any specific findings of fact as to the credibility of witnesses who testified before it. That is a misdirection which allows us to be at large and to re-assess the evidence of the witnesses. Our object would be to establish the witnesses’ credibility or otherwise” of those two witnesses and that none of them did have a reason to lie against the appellant.  He did not profer any cogent reasons for the belief which he entertained as regards the credibility or otherwise of those witnesses - and</p> <ul> <li>the respondent remained mute regarding the alleged misdirection.” (Emphasis added)</li> </ul> <p>In <em>Hwande v The State</em> MAKARAU J as she then was made the following pertinent remarks regarding the need for a trial court to assess the credibility of witnesses:</p> <p>“In assessing the cogency of the evidence that was before it at the end of the trial, the court <em>a quo</em> did not give its assessment of the credibility of this witness. It is important for trial courts to always assess the credibility of the witnesses appearing before it for the guidance of appeal courts. Where a finding of credibility has been done by the trial court, an appeal court is always slow to disregard such a finding. Where such a finding is however not made, the appeal court is placed in the less advantaged position of having to assess the credibility of the witness on the basis of the record without the “evidence of the demeanour of the witnesses, their candour or partisanship and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial”.</p> <p> </p> <p> </p> <p>Thus whilst an appellate court in such instances can make findings on the credibility of witnesses, it is at a disadvantage as such assessment is made based on the record without seeing and hearing the witnesses, observing the demeanour, candour or partisanship which is the preserve of the trial court.</p> <p> </p> <p>In <em>Charangwa v The State</em> the court emphasized the point that the judgment of a trial court must reflect the court’s appraisal of the credibility of each witness stating what evidence was accepted or rejected and giving reasons for its decision. It stated thus:</p> <p>“The reasons why the trial court rejected the appellant’s evidence are not apparent from the judgment. The court simply dealt with the state witnesses’ evidence and ended there. The trial court failed to analyse and give reasons for rejecting the appellant’s defence. The judgement does not deal at all with the testimony of the appellant. In S v Ncube HB 61/03 the court stated the following regarding the need to appraise each witness’s evidence;</p> <p> </p> <p>“…a court’s judgment in a criminal trial should contain a brief summary of the facts found proved and trial court’s appraisal of the credibility of each witness stating what evidence was accepted or rejected and giving reasons for its decision. What is required is a complete and meaningful judgement touching on all material evidence led at the trial.”</p> <p> </p> <p>See also the case of Clever Howard v The State HH 39/05.The court in this case also impressed on the need for a trial court to always assess the credibility of witnesses appearing before it.</p> <p>An offender who goes through a trial is entitled to know the outcome of his trial and the court’s findings on his credibility. Each witness’s evidence is required to be weighed and reasons given why the evidence has been accepted or rejected. Such an offender is also not just entitled to the outcome of the trial but to be furnished with the reasons why the defences he raised were rejected. A judgment should be well balanced and is required to include reasons showing that both the offender and the complainant’s versions have been considered. It must be shown that all the facts and issues raised have been considered and weighed. This judgment falls far short of requirements of a good judgment.”</p> <p> </p> <p> </p> <p> </p> <p>Failure to do so renders the judgment passed ‘bad’ so to say as highlighted in the <em>Charangwa</em> case <em>supra</em>.</p> <p> </p> <p>Thus, the conclusion reached by a trial court without assessing the credibility of witnesses or weighing such evidence constitutes a gross misdirection upon which an appellate court may allow the appeal and order a re-trial or in turn assess the evidence itself.</p> <p> </p> <p>Assessment of witnesses’ evidence and making findings on credibility is the yardstick with which it can be determined that a court of law has applied its mind to the case before it in a proper manner. This can be drawn from the findings of the court in <em>S v Singh</em> where it noted:</p> <p>“Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the State witness and that of an accused. It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and the credibility of the State witnesses that, therefore, the defence witnesses, including the accused, must be rejected. The proper approach in a case such as this is for the court to apply its mind not only to the merits and the demerits of the State and the defence witnesses but also the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond all reasonable doubt. The best indication that a court has applied its mind in the proper manner in the abovementioned example is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses.” (My emphasis)</p> <p> </p> <p> </p> <p>What comes out from the above authorities is that, the assessment of the credibility of witnesses is one of the key tasks of the trial judge. A trial judge must consider all the evidence, record any credibility findings and explain a logical and rational basis for those findings.  As such, it has been reiterated by this Court time and again that an appellate court is generally reluctant to interfere with a trial court’s decision on the credibility of witnesses unless it concludes that such findings cannot be supported. See<em> Mthimkhulu v Nkiwane &amp; Anor</em> S-136/01. Above all, the findings of credibility must be considered in the light of proven facts and probabilities. See <em>Gumbura v The State</em> SC 78/14.</p> <p> </p> <p>In <em>casu</em>, the court <em>a quo</em>, after outlining the evidence of the witnesses made a blanket statement that “The court has considered all the evidence led in this case as well as submissions made by both counsel.” It did not, in analysing the cogency of the evidence, assess the credibility of the witnesses. It did not set out why it accepted the evidence of the state witnesses and rejected that of the appellant and its reasons thereof.</p> <p> </p> <p>                        If the court <em>a quo</em> had properly applied its mind to the evidence of Mr Zhang and that of the accused, it would have arrived at a different conclusion as to whether the State had established, beyond a reasonable doubt, the guilt of the appellant.  It would have found that Mr Zhang was inconsistent in his testimony. His evidence in court differed in material respects from the statement he had given to the police confirming that the appellant was indeed a director of Rock Rabbit (Private) Limited, verbally appointed so by him although the official documents had not yet been amended to reflect the fact. It would have realised that it was unsafe to convict the appellant in the circumstances. It would have found that the evidence tendered before the court suggested the appellant was more than a mere consultant in respect of the mining concession. He had been instrumental in the issuance of the mining concession to Rock Rabbit Investments (Private) Limited and had in his custody the actual grant and the accompanying letter from the Ministry of Mines advising the Directors of Rock Rabbit Investments  (Private) Limited  of the issuance of the grant.</p> <p> </p> <p>                        The appeal had merit hence the order made by this Court.</p> <p> </p> <p><strong>MAKARAU JA</strong>                    I agree</p> <p> </p> <p><strong>HLATSHWAYO JA</strong>            I agree</p> <p> </p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p>HH 154/16</p> <p>HH 39/05</p> <p>See <em>S v Isano</em> 1985 (1) 62 (S)</p> <p>Per LORD MAcMILLAN in <em>Thomas v Thomas</em> [1947] 1 All ER 582.</p> <p>HH 664/15</p> <p>1975 (1) SA 227 (N) at 228</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/75/2020-zwsc-75.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42664">2020-zwsc-75.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/75/2020-zwsc-75.pdf" type="application/pdf; length=290918">2020-zwsc-75.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/154">S v Mazorodze (HH 154-16 CA 1188/12) [2016] ZWHHC 154 (24 February 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/664">S v Charangwa (CA 610/14 CRB 1126/14) [2015] ZWHHC 664 (15 July 2015);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/78">S v Gumbura (SC 349/14) [2014] ZWSC 78 (15 October 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/4">Money Laundering and Proceeds of Crime Act [Chapter 9:24]</a></div></div></div> Thu, 20 Aug 2020 09:26:59 +0000 Sandra 9850 at https://old.zimlii.org S v Ndlovu (HB67-20, HCB 77/20) [2020] ZWBHC 67 (24 April 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/67 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>PHILIP NDLOVU</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 18 MARCH 2020 &amp; 24 APRIL 2020</p> <p> </p> <p><strong>Application for bail pending appeal</strong></p> <p> </p> <p><em>K. Ngwenya</em> for the applicant</p> <p><em>B. Gundani</em> for the respondent</p> <p>            <strong>MAKONESE J:        </strong>This is an application for bail pending appeal.  The application is opposed by the state on the grounds that there are no reasonable prospects of success on appeal against both conviction and sentence.</p> <p><strong>Factual Background </strong></p> <p>            Applicant appeared before a magistrate sitting at Tredgold Magistrates’ Court on the 7th October 2019 facing one count of forgery in contravention of section 137 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  Applicant faced a second count of fraud in violation of section 136 of the Criminal Code.  After a full trial applicant was convicted on both counts.  Both counts were treated as one for the purpose of sentence and applicant was sentenced to 48 months imprisonment of which 12 months imprisonment were suspended for 5 years on the condition of future good conduct.</p> <p>            Sometime in July 2015, the applicant approached the complainant looking for a house to rent.  Complainant agreed to lease out to the applicant a 5 roomed property at number 3 Wentworth Road, Thorngrove, Bulawayo.  A verbal lease was entered into, in terms of which applicant was required to pay rentals at the rate of US$300 per month.  The house in question belonged to the complainant’s son, Nkosinathi Mathe and Pathisiwe Samkele Mathe who were both resident in the United Kingdom at the time.  The complaint was mandated by a Power of Attorney to manage the property.  On the 4th September 2015, the complainant proceeded to the United Kingdom on a visit and in turn authorized the applicant by virtue of a Power of Attorney to manage her personal affairs.  This decision turned to be unwise.  On 11th February 2016 the applicant took advantage of the Power of Attorney obtained from the complainant to craft an “Acknowledgment of Receipt” purporting to confirm that the complainant had sold the house at number 3 Wentworth Road, Thorngrove to the applicant for the sum of US$23 000.  Complainant forged the complainant’s signature on the receipt using a specimen signature on the Power of Attorney given to him by the complainant.  The applicant’s conduct in forging the signature was unlawful and was the basis of the first count on forgery.  The trial magistrate was satisfied that the state had succeeded in proving its case against the applicant and rejected the applicant’s defence.</p> <p>            On the second count of fraud, the state alleged that the applicant who was unable to pay the monthly rentals for number 3 Wentworth Road, Thorngrove for the period extending from August 2016 created a false acknowledgement of receipt claiming that the complainant had sold the property to him for the sum of US$23 000.  The applicant alleged that he had paid a deposit of US$20 000 towards the purchase price leaving a balance of US$3 000.  The complainant only got wind of the fraudulent sale when she appeared in a civil court seeking to evict the applicant for non-payment of rent. In his defence, the applicant alleged that he had purchased the property and was the new owner of the property.  The state alleged that the potential prejudice to the complainant was US$40 000 being the value of the property.  The applicant argued that the state had not proved the essential elements for fraud.  He was nonetheless convicted by the trial magistrate.</p> <p><strong>The basis for the application for bail</strong></p> <p>            In his bail statement in terms of section 5 (1) (e) of the High Court (Bail Rules, 1991, the applicant submits that his appeal has good and reasonable prospects of success in that:-</p> <ol> <li>The trial court erred and misdirected itself in fact and law by convicting the applicant of forgery and fraud yet the evidence adduced by the state did not prove the essential  of  the charges  beyond reasonable doubt.</li> <li>The trial court erred and misdirected itself in fact and in law by convicting applicant of  forgery and fraud and yet the evidence placed before the trial court proved that the signature on the alleged forged documents were identical in construction and size thus casting a reasonable doubt and possibility that the signatures were that of the complainant.</li> <li>The trial court erred in convicting the applicant yet the evidence by the state did not rebut or controvert the applicant’s defence and explanation.</li> </ol> <p>As regards sentence, the applicant contends that the trial court improperly exercised its sentencing discretion in imposing a custodial sentence which is manifestly excessive so as to induce a sense of shock.  The applicant argues that the trial court failed to adequately give due weight to all the mitigating features of the case.  Applicant avers that on appeal, there is reasonable possibility that a sentence other than a custodial and may be imposed.</p> <p><strong>The legal principles applicable</strong></p> <p><strong>Prospects of success</strong></p> <p>            The applicant contends that there are reasonable prospects of success on both the conviction on forgery and fraud.  It is my view that the evidence led in the court <em>a quo</em> was  compelling and credible.  The complainant denied ever signing the acknowledgment of receipt.  She denied that she had sold her property to the complainant.  She testified that there was no way applicant could have afforded to purchase the property when he was failing to pay monthly rentals amounting to US$300.  The questioned document was sent for forensic examination.  In terms of section 275 of the Criminal Procedure and Evidence Act (Chapter 9:07), the evidence of the forensic scientist was admitted into the record by consent.  The forensic report confirmed that indeed the signature on the acknowledgement of debt and the “purported agreement of sale” and a notice of opposition filed in the civil suit were <em>“copies of the same signature as they are</em> <em>identical in construction and size are superimposed</em>”.  The forensic expect further observed that the signature of one Nkala appearing on the acknowledgement of receipt and the agreement of sale was identical in construction and size and was superimposed.  This clearly proved that the signatures had been uplifted from the primary source document that is why it was identical in construction and size.</p> <p>            The conclusion was that it was rare to have one person executing his/her signature in a similar and like manner where the signatures are identical and similar.  In normal circumstances there would slight variations in construction and size.  The inescapable conclusion was that the signature on the questioned documents were copied and pasted thereon.  The documents in question originated from the applicant who failed to avail the original documents.  All the purported documents were scanned documents. There were no original documents. Applicant failed to give a reasonable and acceptable explanation.  The state correctly convicted the applicant on the count of forgery.</p> <p>            In the case of <em>Chikumba</em> v <em>The State</em> HH-724-15, the court held that in applications for bail pending appeal the question is not whether the appeal will succeed, but it is whether the appeal is free from predictable failure.  In this matter, I am of the view that the appeal carries no prospects of success on the count of forgery.  On the second charge of fraud, there is overwhelming evidence that applicant unlawfully and with intent to deceive the complainant misrepresented that Emily Mathe had signed an acknowledgment of receipt as proof that she had sold house number 3 Wentworth, Thorngrove, Bulawayo.  The applicant used the forged document in a civil claim and resisted eviction the grounds that he had bought the property.  There was potential prejudice suffered in the sum of US$40 000.</p> <p>            In <em>State</em> v <em>Tengende &amp; Ors</em> 1987 ZLR 445, the Supreme Court held that the proper approach in applications for bail pending appeal is that in the absence of positive grounds for granting bail it will be refused.  In my view, the granting of bail pending appeal involves the exercise of the court’s discretion.  The court is enjoined to balance the interests of the applicant and the proper administration of justice.  Where the applicant has been tried and properly convicted and sentenced, it is for him to tilt the balance in his favour.  Whilst the liberty of the applicant in an application for bail pending appeal must be carefully considered, the absence of reasonable prospects of success is a major factor in assessing whether the application must be granted.</p> <p>See also; <em>S</em> v <em>Williams</em> 1980 ZLR 466 AD</p> <p>            As regards sentence the trial court exercised its sentencing discretion judiciously and took all the facts placed before it into consideration.  An appeal court will not lightly interfere with the sentencing discretion of a lower court, unless it is shown that the sentence is manifestly excessive and wholly inappropriate.</p> <p><strong>The risk of abscondment</strong></p> <p>            The state has not argued in its opposition to bail pending appeal that there is a likelihood that the applicant may abscond.  I shall therefore not venture to explore that possibility.  Suffice it to say that the prospects of success and the possibility of abscondment are interconnected.  The less likely the prospects of success, the more the inducement there is on an applicant to abscond.  In every case where bail is sought after conviction the onus is on the applicant to show why justice requires that he should be granted bail pending his appeal.</p> <p>            I am satisfied that the applicant’s appeal carries no reasonable prospects of success as regards both conviction and sentence.  In the exercise of my discretion, I am not inclined to grant the application for bail pending appeal.</p> <p>            In the result and accordingly, the application is hereby dismissed.</p> <p> </p> <p> </p> <p><em>T. J Mabhikwa &amp; Pasrtners</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/67/2020-zwbhc-67.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20855">2020-zwbhc-67.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/67/2020-zwbhc-67.pdf" type="application/pdf; length=224987">2020-zwbhc-67.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-pending-trial">Bail pending trial</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/724">S v Chikumba (B 532/15 Ref Case No. CA 344/15) [2015] ZWHHC 724 (09 September 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 08 Jun 2020 12:31:36 +0000 Sandra 9644 at https://old.zimlii.org S v Muhabe (HMT 16-20, CA 87/19) [2020] ZWMTHC 16 (27 February 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/16 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PAUL MUHABE</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA &amp; MUZENDA JJ</p> <p>MUTARE, 5 February 2020 and 27 February 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal  </strong></p> <p> </p> <p> </p> <p><em>I Mandikate</em>, for the appellant  </p> <p>Mrs <em>J Matsikidze</em>, for the accused</p> <p> </p> <p> </p> <p>            MUZENDA J: The appellant was convicted of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] and sentenced to 24 months imprisonment of which 4 months was suspended for 5 years on conditions of future good behaviour, of the remaining 20 months, 5 months imprisonment was suspended on condition that appellant restitutes complainant. In addition 2 months imprisonment suspended previously were brought into effect.</p> <p>            Appellant noted an appeal against both conviction and sentence and outlined the grounds as follows:</p> <p> </p> <ol> <li>Ad Conviction <ol> <li>The Learned Magistrate erred by accepting and putting reliance on the evidence of the complainant on single witness whose evidence was not clear and satisfactory in each and every material respect.</li> <li>The Learned Magistrate erred in concluding that there was overwhelming evidence that appellant committed the offence when the evidence relied on was riddled with serious inconsistencies which were never clarified when the state closed its case.</li> <li>The Learned Magistrate also erred in her assessment of the guilty or otherwise of the appellant when she made a comparison to say of the two versions complainant’s version was more plausible.</li> <li>The learned Magistrate erred by accepting it as a fact that complainant had been referred to the appellant by his distant sister without any evidence having been led from the state to buttress this point.</li> <li>The Learned Magistrate erred by rejecting appellant’s defence that the engagement was over the issue of bales and a laptop a defence which was corroborated by the bank slip as well as some concessions by complainant during cross-examination.</li> </ol> </li> </ol> <p> </p> <ol> <li>Ad Sentence <ol> <li>The sentence imposed by the Learned Magistrate was manifestly excessive to the extent that it induces a deep sense of shock given the mitigatory factors in favour of appellant which outweighed factors in aggravation.</li> <li>The Learned Magistrate erred at law by sentencing appellant without proffering reasons for opting for such a sentence.</li> <li>The Learned Magistrate erred upon her arrival at effective sentence of 15 months imprisonment on appellant, by failing to consider the imposition of community service in lieu thereof.</li> <li>The Learned Magistrate erred in imposing an effective custodial sentence on appellant when a fine and a wholly suspended prison sentence on condition of restitution thereof were ideal and permissible of the offence.</li> </ol> </li> </ol> <p>FACTS</p> <p>            According to the state outline, the appellant is a lecturer at Zimbabwe Distance Education, Mutare, complainant Cain Qongo resides in Chivhu, he is unemployed. Sometime in April 2018, the appellant hatched a plan to defraud unsuspecting members of the public who were looking for college training places at Mutare Polytechnic where he roamed around looking for possible clients. On unknown date, but during the same month, complainant went to Mutare Polytechnic College intending to find a college place as a full time student but he failed to secure a place. Whilst at the college, the complainant met the appellant who introduced himself as a lecturer and that he was in the college selection team. The complainant who was desperately in need of a place warmed up to the appellant and asked for assistance to get a training place at the institution. The appellant indicated to the complaint that he would facilitate a training place for the complainant at the college. He told complainant that his place was automatic and that he should deposit $940-00 into appellant’s Steward Bank Account so that appellant would tender the money to the college as school fees. The appellant asked for complainant’s particulars and dismissed him later after telling him to wait for the next intake. On 26 October 2017, the complainant deposited $940-00 into appellant’s account. From that day the complainant made frantic efforts to have receipts as proof of payment of college fees from the appellant but to no avail. The complainant continued with his efforts until the appellant was no longer reachable on his mobile phone. Later complainant proceeded to Mutare Polytechnic College enquiring about his place but was told there was none. He enquired about the appellant and the college expressed no knowledge of him. On the same day complainant made a report at Mutare Central Police leading to the arrest of the appellant. Total value of prejudice is $940-00 and nothing was recovered.</p> <p>            The following aspects were on hearing of the appeal found to be common cause:</p> <ol> <li>appellant met complainant and complainant deposited an amount of $940-00 into appellant’s account.</li> <li>after the payment of $940-00 by the complainant to the appellant, appellant became elusive till he was arrested.</li> <li>the appellant admits that he did not refund the $940-00 to the complainant up to this date.</li> </ol> <p>Although the appellant admits that he was paid $940-00 by complainant he denies that the money was for the facilitation of assisting complainant to get a training position at Mutare Polytechnic. The court <em>a quo</em> analysed the credibility of the complainant’s evidence and believed the complainant; we fail to see any basis for upsetting that given the issues of common cause outlined herein. The appellant did not dispute that the complainant actually went to Mutare Polytechnic to check whether his name was among those reserved for the appropriate course. He did not get any confirmation from the Registry thus he decided to lodge a report with the police. Appellant in his heads of argument submitted that the complainant’s evidence was packed with inconsistencies which were never clarified by the state. He further averred that the court <em>a quo</em> made a comparison between testimony of complainant and appellant’s version and adjudged that the version of the complainant was plausible. We had the opportunity to critically look at the judgment of the trial magistrate and we came to the conclusion that there were no inconsistencies allegedly perceived by the appellant at complainant’s evidence. Given the fact that there was no eye witness relating to what transpired between appellant and complainant, there is nothing untoward done by the trial court in adjudging the veracity of both appellant and complainant’s version before reaching the decision the court did. In any case the conduct of the appellant in this matter left a lot of issues unexplained more particularly as to why he avoided the complainant when he knew that he had not paid back the $940-00 nor found a place for the complainant at Mutare Polytechnic. The issue of the laptop alluded to by the appellant in his appeal papers was not pursued on the date of hearing. We are satisfied that the appeal against conviction has no merit and the concession made by the state does not find favour with us and we reject it. The appeal against conviction is dismissed.</p> <p>As regards sentence, given the value of the prejudice in this matter being $940-00 and taking into account that there is also an order for restitution, the sentence of 24 months imprisonment is rather on the excess. We are aware that the appellant is a repeat offender, but that does not bar the court from passing a sentence of community service if the ultimate sentence contemplated by the court comes into the realm of community service. Appellant’s legal practitioner indicated during hearing that the appellant had already served three months imprisonment that would cover the 2 months imprisonment which was brought into effect on the day of his sentence. The appellant is employed at Zimbabwe Distance Education and a custodial sentence may have caused loss of his employment. The appeal against sentence succeeds:</p> <p>Accordingly the sentence of 24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition of future good behaviour and 5 months is set aside on condition of restitution and substituted as follows:  </p> <p>“15 months imprisonment of which 5 months imprisonment is suspended on condition that accused restitutes complainant in the sum of $940-00 through the clerk of court, Mutare on or before 30 April 2020 and the remaining 10 months imprisonment is wholly suspended on condition accused performs 350 hours community service at an institution to be agreed between accused’s defence counsel and the state.”</p> <p> </p> <p>            The trial court is directed to summon the appellant and have his sentence explained to him and also agree on an institution at which the appellant is going to serve the community service.</p> <p> </p> <p> </p> <p> </p> <p>MWAYERA J agrees _________________</p> <p> </p> <p> <em>Mugadza Chinzamba &amp; Partners,</em> appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/16/2020-zwmthc-16.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27764">2020-zwmthc-16.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/16/2020-zwmthc-16.pdf" type="application/pdf; length=210191">2020-zwmthc-16.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-sentence">Appeal of sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/community-service-sentence">Community service (Sentence)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 25 Mar 2020 15:43:10 +0000 Sandra 9591 at https://old.zimlii.org S v Tapfuma (HH 2-20, B1824/19 HCB1287/19 HREP.10914/19) [2020] ZWHHC 2 (20 December 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/2 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DOUGLAS TAPFUMA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>                                                                                                    </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSITHU J</p> <p>HARARE, 11 December 2019 &amp; 20 December 2019</p> <p> </p> <p> </p> <p> </p> <p><strong>Bail Appeal </strong></p> <p> </p> <p> </p> <p> </p> <p><em>TTG Musarurwa</em>, for the appellant</p> <p><em>E Mavuto, </em>for the respondent</p> <p> </p> <p> </p> <p>            MUSITHU J: This is an appeal against the decision of the Magistrates Court which dismissed the appellant’s application for bail pending trial based on changed circumstances. The appellant has had two appeals against refusal of bail by the magistrates’ court dismissed by the High Court. An application for bail based on changed circumstances was struck off the roll by Chitapi J on the basis of a procedural impropriety. The present appeal arises from the following brief factual background.</p> <p>The appellant was charged with criminal abuse of duty as a public officer as defined in section 174(1) (a) of the Criminal Law Codification and Reform Act (the Act). The State has since applied to include an alternative charge of fraud as defined in section 136 of the Act. On 14 November 2019, the appellant appeared before a trial magistrate for the commencement of his trial. The matter was postponed to 3 December 2019 primarily for two reasons, firstly because the appellant’s legal practitioners had been served with the alternative charge a day before the scheduled trial date, thus according them inadequate time to amend the appellant’s defence outline; and secondly because the appellant’s counsel of choice was not available.</p> <p>After the postponement was granted, the appellant’s counsel made an application for bail before the trial magistrate based on changed circumstances. The changed circumstances were firstly that although the postponement of the matter was at the appellant’s instance, it had been occasioned by the State’s failure to serve the alternative charge timeously. Reliance was placed on the judgment of Chitapi J and his finding that there was no longer any sound reason to continue incarcerating the appellant. Secondly, it was submitted that the inclusion of the alternative charge of fraud which had previously not been considered in the bail appeal that was heard by Muzofa J constituted a changed circumstance. It was argued that the alternative charge was a tacit admission by the State that its case was not as strong as earlier envisaged and there was the possibility that the appellant could now be convicted of fraud which under the circumstances was a lesser offence than the main charge of criminal abuse of duty.</p> <p>The learned magistrate in the court <em>a quo</em> dismissed the application on the basis that the reasons cited by the appellant as constituting changed circumstances were not such as to persuade the court to grant bail. It is this decision of the learned magistrate which is the subject of the present appeal. The appellant submitted that the lower court misdirected itself in dismissing the application on the basis that there were no changed circumstances. The respondent argued that there were no changed circumstances.</p> <p><em>Proviso</em> (ii) to s 116 (c) of the Criminal Procedure and Evidence Act, which grounds an application of this nature provides as follows:</p> <p>“Where an application in terms of section 117A is determined by a judge or magistrate, a further application in terms of section 117A may only be made, whether to the judge or magistrate who has determined the previous application or to any other judge or magistrate, if such an application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or have been discovered after that determination.”</p> <p> </p> <p>In <em>S </em>v<em> Barros and Ors</em>, Hlatshwayo J (as he then was) commented as follows on the above section: “The meaning of the above provision is quite clear. Where an application for bail has been refused, a further application for bail may only be made if such application is based on changed circumstances, that is, facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after that determination. The reason for this rule is obvious. It is meant, among other things, to obviate the presentation of the same facts or variants thereof, over and over again, in a bid to obtain bail and helps in achieving finality in the matter.”  </p> <p> </p> <p>In <em>Daniel Rance</em> v <em>The State</em>, CHEDA J remarked as follows at page 2 of the cyclostyled judgment;</p> <p>“In determining changed circumstances the court must go further and enquire as to whether the changed circumstances have changed to such an extent that they warrant the release of a suspect on bail without compromising the reasons for the initial refusal of the said bail application.”</p> <p>This court is required to consider whether the appellant placed before the lower court such facts which constituted changed circumstances, and in respect of which the court committed a misdirection when it dismissed the appellant’s application which was based on the new facts. I have highlighted earlier in this judgment that the appellant advanced two factors as constituting changed circumstances. The first pertained to a postponement of the matter whose trial had failed to take off on 14 November 2019. The applicant’s counsel argued that the matter was postponed after the respondent failed to timeously serve the appellant’s legal practitioners with the new alternative charge. The alternative charge had been served a day before the hearing thus denying the appellant’s legal practitioners time to consult with the appellant, as well as amend the appellant’s defence outline. Reliance was also placed on the judgment by Chitapi J, in which although the learned judge struck off the bail application before him on the basis of a procedural flaw, he stated that there was no longer any sound reason to continue incarcerating the appellant. It was submitted on behalf of the appellant that the Chitapi J judgment made both a legal and factual finding in favour of the appellant. It was therefore a misdirection for the learned magistrate to disregard the findings of a high court judge without concisely setting out her points of departure from that judgment. Doing so was a violation of the sacrosanct <em>stare decisis</em> rule.</p> <p>In his judgment on the bail application by the appellant based on changed circumstances, Chitapi J took exception to the manner in which the respondent appeared to be prevaricating and dithering with regards to the commencement of the appellant’s trial in the lower court. The learned judge had considered the failure of the trial to take off on 29 October 2019 at the instance of the State, and the further failure of the trial to commence on 4 November 2019, after the respondent’s counsel sought to amend the charge by including an alternative charge of fraud. The appellant’s counsel had come prepared for the commencement of the trial, but the matter had to be postponed yet again. The honorable judge then went on to make the following comments which were drawn to my attention by Advocate <em>Musarurwa</em> for the appellant:</p> <p> </p> <p>“It cannot accord with real and substantial justice for the court to continue to hold the applicant in custody where the State prevaricated on what charges to prefer. Mr <em>Mavuto</em> did not dispute that the amended charges were not available on the date of trial and neither were they available when this application was being argued. When I asked Mr <em>Mavuto</em> to advance compelling reasons for denial of bail in the light of the prosecution’s failures and unpreparedness for trial, counsel said that he had nothing further to submit beyond the trial prosecutor’s affidavit, a clear sign that he could not support the continued denial of bail”</p> <p> </p> <p>It is the alleged failure by the learned magistrate to take into account these observations by Chitapi J that appellant’s counsel had serious misgivings with.</p> <p>            For the respondent it was argued that the trial could not take off on 28 October 2019, because the appellant argued that the documents served on him by the respondent were not certified. The matter was postponed to 4 November 2019 to allow the respondent to address the anomaly. On 4 November 2019 the respondent preferred an alternative charge of fraud. The trial failed to kick off as the appellant requested for more time to amend its defence outline in view of the alternative charge. The matter was postponed to 14 November for commencement of trial. On 14 November the matter failed to take off as the appellant’s counsel of choice had travelled to South Africa on medical grounds. It was postponed to 3 December 2019 for trial by consent. Still on this day the matter did not take off as the appellant’s counsel was appearing at the High Court bail court to argue the appellant’s bail appeal following the dismissal of his application for bail based on changed circumstances. The trial has since been set for 14 January 2020.</p> <p>            Regarding the comments by the Honourable Chitapi J which were highlighted on behalf of the appellant, Mr <em>Mavuto</em> for the respondent argued that the comments were made in the context of a matter that was not properly before the judge as he proceeded to strike it off the roll. Further, he argued that the comments had been made before the appellant made a fresh application for bail based on changed circumstances. His comments were therefore not binding on the lower court as circumstances had changed necessitating the dismissal of the fresh application by the lower court. The learned magistrate found as follows regarding the comments by Chitapi J:</p> <p> </p> <p>“Justice Chitapi’s views on the matter cannot be taken as changed circumstances warranting the release of the accused on bail.my view is that this court should be slow to grant the 2nd application of an accused for bail where the earlier application was decided on the merits and there is no substantial change of circumstances”</p> <p> </p> <p>Regarding delays in the commencement of the trial the learned magistrate made the following remarks:</p> <p> </p> <p>“It is also necessary to point out that the trial failed to kick off mainly because of the non-availability of accused counsel of choice. It is true that the state had failed to serve the papers necessary for purposes of preparation for trial as in terms of the law. However, both parties conceded that the papers were ready well in time for trial as is required by the law. The State relied on mutual trust that counsel for the accused was making arrangements to collect the papers to no avail. The State, therefore, cannot be held entirely to blame for the delay”</p> <p> </p> <p>I see no reason to interfere with the learned magistrate’s factual findings in this regard. She found that delays in the commencement of the trial could not be entirely blamed on the respondent. The sentiments by Chitapi J, limited as they were to the State’s unpreparedness for trial as at the time the bail application was argued before him, cannot in my view, be construed as binding on the lower court. The sentiments were expressed in the context of circumstances prevailing then. The circumstances had since changed at the time that a fresh application was made before the lower court. The State, as the lower court found, was not entirely to blame for the delays. There had been subsequent developments which the lower court was privy to.</p> <p>The second factor submitted by Advocate <em>Musarurwa</em> was that the introduction of an alternative charge was a tacit admission by the respondent that the facts as they stand may not constitute the charge of criminal abuse of office. He further submitted that the appellant had always maintained that everything he did was sanctioned by his superiors. The alternative charge was therefore an admission of the appellant’s defence. He further submitted that the alternative charge was less serious considering the extent of prejudice as set out in the main charge. The alternative charge did not even state the extent of prejudice. Further, the charge was excipiable on the basis that the prejudice is alleged to have been suffered by the department of State residencies, when in fact if any prejudice occurred, it was to the Revenue Authority or the State. Mr Mavuto for the respondent argued that the respondent had the prerogative to introduce an alternative charge for as long as the accused had not yet pleaded to the charge. No prejudice was occasioned by the introduction of the alternative charge. He further submitted that the alternative charge was even more serious and that the extent of prejudice suffered was not the sole determinant of the sentence to be imposed in the event of a conviction. He argued that it was for the trial court to determine whether or not the alternative charge was defective when the trial commenced. He urged the court to dismiss the appeal since no misdirection had been established. The lower court had made the following conclusion on this factor:</p> <p>“In the case of <em>Kereke v Maramwidze</em> HH 792/16, it was said that such an application is based on facts which were not placed before the judge or magistrate who determined the previous application which has arisen or discovered after the determination of the application. Can it be said that the inclusion of the alternative charge could have influenced the decision in accused favour? My view is that the arguments advanced by counsel for the accused do not amount to the envisaged changed circumstances in section 116 of the CP&amp;EAct. The inclusion of the alternative charge is not a fact which would tilt the balance in favour of the accused person. The filing of the alternative charge does not amount to exceptional circumstances even after the dismissal of the initial bail application because it does not work in his favour.”</p> <p> </p> <p>I have no cause to find fault with the decision of the learned magistrate on the second factor. In my view the learned magistrate properly applied her mind to the two factors that were placed before her as reasons justifying the granting of bail based on changed circumstances. She found that these did not constitute changed circumstances for reasons that I have highlighted. I am inclined to agree with her decision that there were no changed circumstances.</p> <p>In the circumstances the appeal is dismissed.</p> <p> </p> <p> </p> <p><em>Venturas &amp; Samkange,</em> appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners  </p> <p> </p> <p>[<em>Chapter 9:23</em>]</p> <p>[<em>Chapter 9:07</em>]</p> <p>2002 (2) ZLR 17 (H) at 20B-C</p> <p>HB-127/04</p> <p>HH 740-19 on page 5 of the judgment.</p> <p>Last paragraph of page 5 and first paragraph of 6 of the judgment, being pages 14 and 15 of the record.</p> <p>Paragraph 3 on page 3 of the ruling being page 21 of the record.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/2/2020-zwhhc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28371">2020-zwhhc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/2/2020-zwhhc-2.pdf" type="application/pdf; length=343062">2020-zwhhc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-bail">alteration of bail</a></li></ul></span> Wed, 19 Feb 2020 09:04:16 +0000 Sandra 9494 at https://old.zimlii.org Kasukuwere v Mujaya & 3 Others (HH 562-19, HC 11252/18) [2019] ZWHHC 562 (21 August 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/562 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>SAVIOUR KASUKUWERE</p> <p>versus</p> <p>MR HOSIAH MUJAYA</p> <p>and</p> <p>MR ZIVANAI MACHARAGA</p> <p>and</p> <p>THE STATE OF ZIMBABWE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 25 July &amp; 21 August 2019</p> <p> </p> <p> </p> <p><strong>Opposed Criminal Review Application</strong></p> <p> </p> <p><em>T Magwaliba</em>, for the applicant</p> <p><em>S Fero</em>, for the 2nd &amp; 3rd respondents</p> <p> </p> <p> </p> <p>            CHITAPI J: The issues which arise in this matter raise the need to conscientize both the prosecution and the judicial office on the importance of the right of an accused person to a fair hearing. The right by virtue of s 86 (3) (e) of the Constitution is absolute. In terms of the provisions aforesaid, “No law may limit --- and no person may violate—the right to a fair trial.” The scope of what constitutes a fair trial or hearing is very wide. For example, in terms of s 70 (1) (b) of the constitution, an accused person has a right to be “promptly informed of the charge; in sufficient detail to enable to answer it.” It follows therefore that a challenge to a charge is not just a matter of course. A determination on the challenge can make a difference as to whether or not the accused is able to exercise the right to a fair trial and adequately prepare a defence as provided for in s 70 (1) (c) of the constitution and to adduce and challenge evidence as provided for in s 70 (1) (h) thereof.</p> <p>            The background to this review application is that the applicant appeared on trial before the first respondent on 29 November 2018 to answer to four (4) counts of criminal abuse of duty as a public officer as defined in s 174 (1) (a) of the Criminal Law (Codification &amp; Reform), Act [<em>Chapter 9:23</em>] (The Code). The applicant against a background of earlier correspondence between his legal practitioners and the third respondent represented by the second respondent took an exception to the charges before pleadings as provided for in s 170 (1) of the Criminal Procedure &amp; Evidence [<em>Chapter 9:07</em>] (CPEA) which provides that:</p> <p>“Any objection to an indictment for any formal defect apparent on the face thereof shall be taken by exception or by application to quash such indictment before the accused has pleaded; but not afterwards.” See <em>Parsons &amp; Anor</em> v <em>Chibanda N.O &amp; Anor</em> 2013 (2) ZLR 209 <em>per </em>MUSAKWA J. The same wording is used in regard to a summons or charge in the magistrates court in s 170 (2).”</p> <p> </p> <p>The rationale for s 170 (1) and (2) is a matter of common sense and logic. An accused</p> <p>cannot approbate and reprobate at the same time. The accused cannot plead to the charge thereby implying that it is properly drafted and then after entering a plea, attack its propriety. The maxim <em>quod approbo non reprobo</em> “lies as the rationale to s 170 (1). The same principle applies in relation to civil procedure wherein an exception to a summons must, if it is intended to except be taken before pleading to the merits. Pleading to the merits acts as a bar to raising an exception since by pleading to the summons and declaration on the merits, the implication is that the plaintiffs claim documents are answerable on the merits in their form. See <em>Tobacco Sales Producers (Pvt) Ltd</em> v <em>Eternity Star Investments</em> 2006 (2) ZLR 293, <em>per</em> KUDYA J.</p> <p>            I have commented on the nature of the application for exception in order to underline the point that such an application is provided for by law. It is an antecedent application to a trial and is no less important than the trial itself inasmuch as it is in fact part and parcel of trial proceedings. An exception to a charge application must be meticulously dealt with by the presiding judicial officer. The application sets the ground for a fair contest between the State as the accuser and the accused person. A fair trial and hearing starts at this stage. An accused person who excepts to a charge must be regarded not as a time waster but as asserting his or her rights to a fair trial. It is incompatible with fair trial standards to order an accused to plead to a charge which he or she has challenged or excepted to without interrogating the charge and the accused’s exception and making an informed determination on the charge as drafted and the objection raised.</p> <p>            I propose to deal with the law relating to the framing of a charge for it not to be excipiable generally and in respect of a charge under s 174 of the Code, in particular. I will then consider how the charges against the applicant were framed and how the first respondent dealt with them. I will then determine whether the review application impugning the first respondent’s decision to dismiss the exceptions should stand or be set aside on review as prayed for by the applicant.</p> <p>The framing of a charge is not a walk in the path. One should start by making the general jurisprudential principle that good laws must be clear and unambiguous. By equal measure, a charge must be clear and unambiquous. In other words, the accused person must not be left unsure or unclear as to the case that he or she must answer to.  If the basis of the charge is an act of commission or omission, the charge should be clear enough for the accused to appreciate the conduct, act or omission which he or/she is alleged to have committed or omitted to do and the fact that the act of commission or omission is criminalized. Reasonable, rather than absolute clarity is sufficient to validate a charge. By this, I do no mean to condone ambiguity in the framing of a charge. The charge must at least contain sufficient details to fully and sufficiently inform the accused of the criminal wrong alleged against such accused. The charge from a basic understanding must address or allege “what did the accused do or not do, where and when? Why or how is it alleged that the accused’s conduct constitutes an offence?”</p> <p>            Section 146 of the Criminal Procedure and Evidence Act, provides for “essential of indictment, summons or charge.” I hasten to state that the words indictment summons or charge mean one and the same charge. The word indictment as provided for in s 136 of the CPEA is used in the High Court as referring to a summons or charge, the two being interchangeably the used in the Magistrates Court. Section 146 cuts across the proceedings in both the High Court and Magistrates Court. The provision of the section reads as follows:</p> <p><strong>“146 Essentials of indictment, summons or charge</strong></p> <p>(1) Subject to this Act and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.</p> <p>(2) Subject to this Act and except as otherwise provided in any other enactment, the following provisions shall apply to criminal proceedings in any court, that is to say—</p> <p>(<em>a</em>) the description of any offence in the words of any enactment creating the offence, or in similar words, shall be sufficient; and</p> <p>(<em>b</em>) any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the enactment creating the offence, may be proved by the accused, but need not be specified or negatived in the indictment, summons or charge, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the prosecution.</p> <p>(3) Where any of the particulars referred to in this section are unknown to the prosecutor, it shall be sufficient to state that fact in the indictment, summons or charge.</p> <p>(4) Where a person is charged with a crime listed in the first column of the Second Schedule to the Criminal Law Code, it shall be sufficient to charge him or her with that crime by its name only.</p> <p>[Subsection inserted by section 282 of Act 23 of 2004]</p> <p>(5) No indictment, summons or charge alleging the commission of a crime mentioned in subsection (4) shall be held to be defective on account of a failure to mention the section of the Criminal Law Code under which the crime is set forth.”</p> <p> </p> <p>            In summation it can be said that the provisions of s 146 (1) are firstly subject to both THE cpeaand to any other enactment which may similarly provide to the contrary. Secondly, the indictment, summons or charge “shall set forth the offence with which the accused is charged in such manner, and with such particulars “as to time and place of the commission of the offence and the person, if any, and the property if any, against whom the offence was committed “as may be reasonably sufficient inform the accused of the nature of the charge” (own underlining). The words “reasonably sufficient” denote that the context or situation of a particular case will determine what is reasonably sufficient to inform the accused of the nature of the charge. The simplicity of the case before the court in terms of facts, the law or both are relevant considerations in informing the degree of particularity of what must be alleged in the charge as would pass the scale of “reasonably sufficient.” The bottom line is that the detail given in the charge should be sufficient to enable the accused to understand what conduct or omission on the accused’s part it is alleged as constituting an offence. In cases where the accused is required to conduct himself in a particular manner but commits a cognizable offence by conducting himself or herself in a manner inconsistent with how he should have conducted himself, the charge should in particularity <em>inter alia</em> provide details of the manner that the accused is required to have acted and alleged the inconsistent conduct which the accused engaged in if this is what constitutes the offence. The accused must not be left to speculate on the charge he or she must answer to.</p> <p>            A number of persuasive cases abound and I refer herein to some South African decided cases. They interpret s 84 of the Criminal Procedure Act, 1997 of South African which is similar in wording to s 146 of the Zimbabwe Criminal Procedure and Evidence Act. In <em>S</em> v <em>Sewela </em>2007 (1) SACR 123 (W) quoted by STEYNE &amp; MARKS JJ in <em>Essop </em>v <em>S</em> 204 ZAKZPWC 45 at para 3, the court state “on a procedural level, it is required averments, and a charge sheet should contain all the essential allegations to be proved by the prosecution in order to sustain a guilty verdict.”</p> <p>            In the same case of <em>Essop </em>(<em>supra</em>) it is stated in para 7:</p> <p>“In <em>S</em> v <em>Langa</em> 2010 (2) SACR 289 (KZP) the majority of the court recognized the principle that a fair trial demands that an accused has the requisite knowledge in sufficient time to make critical decisions which will bear on the outcome of the case as a whole. It is for this very reason that a charge sheet ought to inform an accused with sufficient detail of the charge he or she should face. It should set forth the relevant elements of the crime that has been committed and the manner in which the offence was committed---”</p> <p> </p> <p>In <em>Rex</em> v <em>Alexander &amp; Others</em> 1936 AD 445 at 445 the court stated:</p> <p>“The purpose of a charge sheet is to inform the accused in clear and unmistakable language what the charge is or what the charges are which he has to meet. It must not be framed in such a way that an accused person has to guess or puzzle out by piercing sections of the indictment or portions of sections to gather what the real charge is which the crown intends to lay against him.”</p> <p> </p> <p>In the case of <em>Intratrek Zimbabwe (Pvt) Ltd &amp; Another</em> v <em>Prosecutor General &amp; Another </em></p> <p>HH 849/18, quoted in the second and third respondents’ heads of argument, MUSAKWA J stated as follows in reference to s 170 of the CPEA;</p> <p>“From a plain reading of the above provision, it is clear that an exception to a charge is based on formal defects that are apparent. -- A distinction ought to be made between an objection to a charge and a defence to a charge. I agree.”</p> <p> </p> <p> I do not however read the learned judge’s pronouncement to mean that it does not</p> <p>constitute a formal defeat apparent on the face of a charge where the charge omits to include essential averments on which the charge is based. The learned judge must not be understood as having limited the scope of the word defect to spelling errors and like mistakes</p> <p>            Indeed, to hold otherwise would be illogical. Thus, where for example, the criminal conduct complained of arises from an act of omission, the duty to act in a particular manner as well as the omission to act in the manner that is expected must both be pleaded. A failure to do so makes a charge excipiable on the face of it. The charge will be defective. In legal terms a defect as defined in the Law Dictionary 2 ed  is “the want or absence of some legal requisite, deficiency, imperfection, insufficiency.”</p> <p>            I now turn to the exposition of the offence of Criminal abuse of duty as a public officer. Section 174 of the Criminal Law (Codification &amp; Reform) Act, which creates the offence provides as follows:</p> <p><strong>“174 Criminal abuse of duty as public officer</strong></p> <p>(1) If a public officer, in the exercise of his or her functions as such, intentionally¾</p> <p>(<em>a</em>) does anything that is contrary to or inconsistent with his or her duty as a public officer; or</p> <p>(<em>b</em>) omits to do anything which it is his or her duty as a public officer to do;</p> <p>for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.</p> <p>(2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.</p> <p>(3) For the avoidance of doubt it is declared that the crime of criminal abuse of duty as a public officer is not committed by a public officer who does or omits to do anything in the exercise of his or her functions as such for the purpose of favouring any person on the grounds of race or gender, if the act or omission arises from the implementation by the public officer of any Government policy aimed at the advancement of persons who have been historically disadvantaged by discriminatory laws or practices.”</p> <p> </p> <p>Section 174 creates a very serious offence which falls under Chapter IX of the</p> <p>Criminal Law (Codification &amp; Reform) Act. The offences created in Chapter IX relate to bribery and corruption. The offences strike at the root of good governance. At the centre of the crimes is greed for money, power and luxury at the expense of good public administration and transparency. The offences result in bureaucratic and inefficient administrative structures and systems in public and private administration. It not a secret that the present government has decreed a zero tolerance for corruption and that there should be no sacred cows in the fight to eradicate corruption.  The none tolerance for corruption mantra by Government is based on the realization and acceptance that there can be no meaningful economic and social development is a society bedevilled or plagued by corruption.</p> <p>I chose to briefly dwell on the serious nature of the Chapter IX offences generally in order to underline the point that, the prosecution of such offences require astuteness on the part of the prosecution. A failure to properly and successfully prosecute such offences invokes public indignation. The public which has an interest in the prosecution of such cases ends up quite understably, drawing wrong conclusions that the criminal justice system especially courts would be the ones lacking in the resolve to have corruption and kindred matters determined. Matters are taken to court for prosecution. However, unless meticulously presented, the accused persons not unexpectedly will raise all sorts of lawful objections to forestall the trial. Some objections have substance whilst others are flimsy. The exception to a charge as I have already observed is a critical and significant objection which must be diligently handled because it is an important procedural step in the fair trial process. For the layman, what is determined upon a challenge to a charge under s 174 of the Code is the composite questions; Is the accused a public officer? Entrusted with what duty and required to discharge it how? What did the public officer do? Did he in doing so or omitting to do so intentionally act in a manner inconsistent or contrary to his duties.? If yes, did he so act or omit to act for purposes of showing favour or disfavour to any person? In so acting or omitting to do so, was the public officer favouring in line with government a race or policy gender which was historically disadvantaged by discriminatory laws or practices?</p> <p>            An astute, shrewd, clever and sharp prosecutor must first appraise himself or herself fully with the elements of the offence called abuse of duty as a public officer as set out in s 174. What is clear from a reading of s 174 is that, the public officer must have acted contrary to or inconsistently with or must have omitted to do anything which it is the public officer’s duty to do. As a matter of common sense, it is embarrassing to the public officer to allege what he or she did and found a charge thereby without anything further. A charge can only properly arise where it is alleged that the public officer was supposed to act in a certain disclosed manner and that in abrogation of the duty to act in that manner, the public officer acted contrary thereto by commission or omission, the details of which must be captured in the charge.</p> <p>            Section 146 (2) (a) provides that it is sufficient in crafting a statutory offence charge to describe the offence in the word of the statute concerned or in similar words. This provision does not detract from s 146 (1) which provides that the charge must provide such particulars as would be reasonably sufficient to inform the accused of the nature of the offence. Describing an offence in the words of the enactment does not mean that essential particulars to inform the accused of the nature of the charge must be omitted. For example, s 174 of the Code creates an offence called “criminal abuse of duty as a public officer.” It will therefore be sufficient to describe the offence using the words as quoted. The charge must still contain sufficient particulars to inform the accused of how it is alleged that he committed the statutory offence so described as “criminal abuse of duty as a public officer.” A public officer is invariably tasked to carry out a number of duties. It is only proper that where it is alleged that the public officer abused his duty, the precise duty which was abused should be included in the charge. The provisions of s 174 are too broad and generalized. It is for this reason that the duty abused be dis closed by reference to how it should have been carried out and how the accused’s conduct as described derogated from the discharge of the duty. Criminal abuse of office has connotations of a labour matter. It may aptly be described as an act of misconduct by a public officer which has been criminalized by statute. A person can only commit an act of misconduct by measuring his or her conduct against the norms of carrying out duty or by reference to conduct which may be listed as misconduct if committed or omitted to be carried out in the course of employment. There can be no criminal abuse in the air. It is only committed by reference to the dos and don’ts in the performance of the public officer’s duty or duties. Were any other approach to be followed, there would be arbitrary arrests and prosecutions in that a public officer would just be accused of improper conduct or abuse of duty at every turn for conduct which does not amount to criminal abuse of that public officer’s duties.</p> <p>            In the case <em>S</em> v <em>Taranhike and 5 Ors</em> HH 222/18, TSANGA J quoted the Hong Kong case of <em>HKSAR</em> v <em>Wong Lin Kay</em> [2012] 2 HKLRD 898 in which the final court of appeal in interrogating the crime of criminal abuse of duty by public officers held that:</p> <p>“…one must examine what if any powers have been entrusted to the defendant in his official position for the public benefit, asking how if at all the misconduct involves an abuse of those powers.”</p> <p>            The dicta in the above case is applicable to the interpretation of s 174of the Code <em>in casu</em>. A charge arising therefrom must allege the powers which the accused is entrusted with which basically is the duty to act in a certain way. A failure to act in that certain manner with attendant intention to show favour or disfavor to any person is what grounds the charge. TSANGA J went further to state that:</p> <p>            “To be guilty of abuse of public office what can be gleaned from the above (s 174) is          that:                </p> <ul> <li>One must have engaged in conduct that is inconsistent with duty as public officer</li> <li>Must act intentionally in the act or omission</li> <li>The purpose of the conduct must be to show favour or disfavor to any one person.”</li> </ul> <p> </p> <p>It follows that for a charge to disclose the offence of criminal abuse of duty as a public officer, the elements of the offence as set out above must be alleged. In addition, the duty which the person was supposed to do which that person discharged contrary to how he should have or inconsistently should be alleged in the charge as well.</p> <p>An illustration by example will show how a charge under s 174 would be adequately crafted. Take an example of a security guard in the employ of the State. Part of his duties are to ensure that no one who does not produce an identity card is allowed into a guarded building. The guard must also record the name and particulars of every entrant. The security guard (W) in breach of his defined duties allows (X) into the building when (X) does not have an identity card. The guard does not record (X’s) name or particulars. The guard would have acted inconsistently with his duties by commission or omission and in the process shown favour to X. Note must be taken that in terms of s 174 (2) favour or disfavour is presumed once the prosecution proves that the public officer acted contrary or inconsistently with his or her duty to the favour or prejudice of any person. In terms of s 146 (2) of the Criminal Procedure and Evidence Act, exceptions, presumptions, provisions, excuses or qualifications which the accused may avoid liability by and which it would be the accused’s duty to prove need not be specified in the charge although they can still be specified.</p> <ul> <li> </li> </ul> <p> </p> <p>The above example is just an illustration of how a charge under s 174 could embrace such particulars as would be reasonably sufficient to inform an accused of the nature of the charge as required under s 146 (1) of the Criminal Procedure and Evidence Act. If one interrogates the example, the accused will have been informed that:</p> <ol> <li> </li> <li> </li> <li> </li> <li> </li> <li> </li> <li> </li> </ol> <p>I would therefore suggest that all that is required to draft a statutory charge under s 174 which discloses an offence and is not excipiable is for the drafter to acquaint himself or herself with the elements of the offence and incorporate them in the charge.</p> <p>I now deal with the application before me in substance. The applicant excepted to the following 4 charges before the second respondent:</p> <p>Count 1: Criminal abuse of duty as defined in s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]</p> <p> </p> <p>“In that on 12 February, 2016 and at the Ministry of Local Government, Public Works and National Housing, Makombe Building, Harare, Saviour Kasukuwere intentionally acted contrary or inconsistent with his duties as a public officer by instructing George Mlilo and/or Rhory Andrew Shawatu to withdraw eight (8) Good Hope offer letters issued to the applicants mentioned in column (1) of schedule (A) below, citing that the government had other pressing needs for that land but instead on 23 February, 2016, Saviour Kasukuwere directed George Mlilo/or Rhorp Andrew Shawatu to allocate and to cause issue of offer letters in favour of seven (7) applicants as shown in column (2) of the said schedule, thereby showing disfavor to applicants in column (1) and favour to applicants in column (2) of the schedule.” (sic)</p> <p>           </p> <p>Count 2:</p> <p>“In that on 4 August, 2016 and at the Ministry of Local Government, Public Works and National Housing, Makombe Building, Harare, Saviour Kasukuwere intentionally acted contrary or inconsistent with his duties as a public officer by directing the Principal Director, State Lands Joseph Makanyakora and or the deputy director State Land management section Andrew Shawatu and or the Director of Physical Planning to issue out an offer letter in the name of an unregistered company called Bo junior Investments (Pvt) Ltd allocating 20 hectares land being the remainder of Shawasha B farm thereby showing favour to Shuvai Gumbochuma who supplied the company name.”</p> <p> </p> <p>Count 3: Criminal abuse of duty as a public officer</p> <p> </p> <p>“In that on 24 March, 2017 and at the Ministry of Local Government, Public Works and National Housing, Makombe Building, Harare, Saviour Kasukuwere intentionally acted contrary or inconsistent with his duties as a public officer by directing Ethel Mlalazi to find land for Shuvai Gumbochuma in Masvingo and to assist in an offer letter in the name of Grussbly Investments (Pvt) Ltd allocating 50 hectares land being the remainder of Clipsham Farm, Masvingo thereby showing favour to Junior Shuvai Gumbochuma who supplied the company name.”</p> <p> </p> <p>Count 4:“Criminal abuse of duty as defined in s 174 (1) (a) of the Criminal Law (Codification and Reform) Act, [<em>Chapter 9:23</em>]</p> <p>                       </p> <p>“In that on a date to the prosecutor unknown but during the period extending from the month of May 2012 to 20 September, 2012 and at the Ministry of Indigenization and Economic Empowerment, Harare, Saviour Kasukuwere in the exercise of his duties as Minister of Youth, Indigenization and Economic Empowerment presided over the selection ofBrainworks Capital being represented by Georg Manyere without subjecting him to a tender process that is contrary to or inconsistent with his duties as a public officer, thereby showing disfavor to the other would be applicants and showing favour to Brainworks represented by George Manyere.”</p> <p> </p> <p>Alternatively : Contravening s 7 (1) as read with s 35 of the Procurement Act [<em>Chapter 22:14</em>)</p> <p> </p> <p>“In that on a date to the prosecutor unknown but during the period extending from the month of May 2012 to September, 2012 and at the of Youth, Indigenization and Economic Empowerment, Harare, Saviour Kasukuwere appointed Brainworks Capital to offer financial advisory works to the National Indigenization Economic and Empowerment Board (NIEEB) without seeking the prior approval of the State Procurement Board in contravention of the provisions of the said Act.”</p> <p> </p> <p>The typed record of proceedings on the exception a substantial 131 pages. The judgement of the first respondent is four pages. The judgement is not detailed. I will comment on it in substance later. The thrust of the application was that the charges lacked an essential element of the offence of criminal abuse of duty. The applicant’s counsel submitted in regard to all the charges that it was essential for the prosecution to identify the duty in respect of which it was alleged that the applicant acted contrary to or inconsistently with. The applicant’s counsel gave examples of how The Law Society By-laws in relation to legal practitioners in so far as they set standards for performance of duty. Counsel also gave an example of the judicial code of conduct in so far as it sets standards for judicial officers. Counsel argued that in the examples he gave, a charge of acting contrary to or inconsistent with the accused person’s duty would have to be based on a deviation from an identified standard within a specific provision of the code allegedly broken being cited. Counsel submitted that there was no code of ethics or statutory instrument which regulated the conduct of a Minister in the allocation of land. He further submitted that the State did not allege the existence of such code of conduct nor a standard practice which ought to have been followed. It was further submitted that although the State outline alleged that in count 3, the applicant allocated three pieces of land to Junior Shuvai Gumbochuma “without following the standard practice in land allocation for residential development”, this did not cure the charge nor place the applicant in a position to be sufficiently informed of the nature of the charge to be able to meaningfully defend himself. The deficiency remained that the alleged “standard practice” which was allegedly not followed remained just an expression as it was not disclosed. Counsel argued that the law or duty which was breached should be identified.</p> <p>In respect of s 174 of the Code under which the applicant was charged, counsel argued that although it created the offence of a public officer acting contrary to or inconsistent with his or her duty, the duty or duties are not defined. It was submitted that the duties had to be found in another source. That source was according to counsel, missing. Counsel also attacked the inconsistency in the columns to schedule A to the charge wherein it was alleged that the applicant took land from 8 allottees and allocated the same to one company Rodonor Investments, yet 7 allottees were allocated land. Counsel also pointed out to contradictions in the charge wherein three of the allottees appear in column1 as having had land taken away from them yet they appear again in column 2 as having been allocated land. Counsel submitted that it was anomalouso disfavor and favour a person at the same time.</p> <p>The above constituted the gist of the exception which was taken on behalf of the applicant in counts 1, 2 and 3. Fuller details are to be found in the written application on pp 101 – 120 of the record. In relation to count 4, counsel submitted that, the role of the applicant as Minister in the procurement process which he allegedly abrogated was not pleaded in the charge. Counsel submitted that the alternative charge of breaching the Procurement Act could only be brought against the procurement entity as defined because it was the one which as a procurement entity was bound by procedures laid down in the Procurement Act. The applicant was not a procurement entity in terms of Second Schedule of the Procurement Regulations, S.I. 171/2002 as amended by S.I. 160/12. Counsel referred especially to s 3 of the regulations and submitted that without alleging that the applicant as Minister had duties to carry out on behalf of the procuring entity and that he abrogated these duties, the charge alleged against him under the Procurement Act was a <em>non sequitur</em>, if I may use the expression. The applicant’s prayer was for the exception that the charges did not disclose an offence to be upheld and that they consequently be quashed and set aside.</p> <p>In his response in relation to the exception the second respondent as third respondent’s counsel in the court <em>a quo</em> took the position that the exceptions were not only untimeously raised but that they lacked substance and amounted to a time-wasting technique. Second respondent took note that the defence counsel had raised the issue of the charges omitting to allege or set out the standard which the applicant deviated from. He however submitted that the state outline consistently mentioned that there is “a land allocation procedure that the accused did not follow.” Second respondent submitted that the defence had through further particulars requested for the allocation procedure to be furnished in writing. He submitted as follows on pp 36 and 37 of the record:</p> <p>“Now even if the court is to go through the entire outline of the State case, it mentions consistently that there is a land allocation procedure that the accused did not follow. Now my colleague says in his request for further particulars he requested for something that is in writing or that so-called land allocation procedure. Your worship already we get to that point, the defence is now going into the merits of the matter, that is a triable issues (sic). Does this alleged land allocation procedure in existence or not? Isn’t it that is why we are here? Now if the State fails to prove that there is a land allocation procedure, the case falls on its face. At that point we are supposed to produce this land allocation procedure your worship. That can be produced through evidence…</p> <p> </p> <p>Your worship land allocating procedure does not necessarily mean that it has to be in writing for it to be in existence. It does not necessarily follow. Now if it is an aspect to say can land allocating procedure that is not written down sufficient or not, that is a triable issue as well.”</p> <p> </p> <p>Second respondent went on to submit that there were witnesses lined up to testify that the applicant was superintending the land allocation. He further submitted that the question of land allocating procedure was going to be central in the trial. Second respondent submitted that he was shocked by the submission made by the applicant’s counsel that Ministers did not have a code of ethics. He submitted that the issue of a Minister’s code of Ethics did not in any event arise in the matter because, as second respondent continued;</p> <p>“…What we only need to prove your worship is that there is a land allocating procedure that is in existence and the accused person omitted to follow it. Now your worship, I want the court to take notice as to what can possibly be alleged at this stage and what can be proved in evidence.”</p> <p> </p> <p>            Counsel further significantly submitted thus on p 38 of the transcript:</p> <p> </p> <p>“What we need to allege at this point are simply the essential elements of the offence that the accused person is a public officer or was a public officer at the material time, that there was a certain conduct or omission by him which favoured a particular person or disfavoured a particular person and in so doing it was inconsistent with his duties. Now as to what was inconsistent with his duties, I have already indicted that there is a land allocating procedure and the allegations are clear that the accused person did not follow these procedures and favoured a company or a person, are Shuvai Gumbochuma….”</p> <p> </p> <p>I must at once express my surprise at the apparent belligerent, hostile and argumentative posture which was adopted by the second respondent as prosecutor. What counsel submitted in essence was that it was not necessary for the charge to disclose or allege the procedures which should have been followed nor indeed the applicant’s duties in that regard. The attitude was more of a refusal to disclose material information or facts as would enable the applicant to plead an informed plea. Indeed, as I observed earlier on, a charge under s 174 is in essence in the nature of an act of misconduct in the discharge of duty by a public officer which has been criminalized.Section 174 deals with anomalous conduct by a public officer. It connotes a deviation from what is standard, normal or expected. It just defies logic and legal reasoning for the prosecution to argue that the standard or norm in regard to which an accused has deviated is not an essential element of a charge of criminal abuse of duty. It was alarming for the second respondent to submit that the standard or procedure which an accused act contrary to or inconsistently with would be proved in evidence. There was utter confusion in the submission. In accordance with rules of procedure, only disputed facts are subjected to proof. Admitted facts are taken as proven. The applicant as accused could only have admitted or put in issue by way of pleading guilty or not guilty as the case maybe to disclosed facts. A layman interrogating a charge of criminal abuse of duty would ask what it was that the accused should have done but did not do before asking questions as to the motive for not doing that which was accused’s duty to do or not do.</p> <p>            In my view, there was really no reason other than an unnecessary though regrettable flexing of muscle by the second respondent as prosecutor in not just applying to amend the charges by alleging the procedures which the applicant flouted and further alleging that that it was applicant’s duty to follow them yet he unlawfully and intentionally negated or countermanded them for purposes of showing favour or disfavour to any person. At the hearing before me, Mrs Fero fairly conceded that there was nothing to have stopped the trial prosecutor from simply amending the charge to include details of the standard practice or norm which it was the accused’s duty to follow and the nature of the direction. In the <em>Taranhike</em> judgment (supra) Tsanga J quoted the case of AG Reference No. 3 (2005) QB 73 in which the <em>mens rea</em> for criminalized misconduct was described as—</p> <p>“--whether the misconduct was of a sufficient serious nature would depend on the responsibilities for the office and the office holder, the importance of the public object they served, the nature and extent of the departure from these responsibilities and the seriousness of the consequences which might follow from the misconduct.”</p> <p> </p> <p>I must therefore authoritatively state that it is necessary to include in a charge under s 174 (criminal abuse of duty as a public officer) as essential particulars, details of the standard practice, norm or duty which the accused was required to act in accordance therewith and that the accused acted contrary or inconsistently therewith for criminal motives as set out in s 174 as they apply. A failure or omission to do so leaves a charge hollow and not only will such a charge not disclose an offence or not provide reasonably sufficient particulars to inform an accused of the case which he or she must answer to, such failure makes the charge vague and prejudicial or embarrassing as would justify its quashing in terms of s 178 (1) of the CPEA.</p> <p>A reading of the first respondent’s ruling shows that he perfunctorily dealt with the application in his determination or ruling. With due respect to the first respondent the ruling does not show that he applied his mind to the legal issues raised in the exception. He did not even interrogate the element of a charge under s 174 of the Criminal Law (Codification and Reform) Act. It was incumbent on the first respondent to have further interrogated each count in turn and determined the validity thereof <em>seriatim.</em> The failure to do was an irregularity and misdirection making the review of the proceedings a necessity. The first respondent at best stated in regard to the application as appears on 35 of the record:</p> <p>“the allegation against the accused person in counts1, 2 and 3 are somewhat similar. It was stated that the accused, who was a Government Minister at the relevant time, had allocated state land to Mrs Gumbochuma or to her shelf company procedurally. The act was referred to as showing favouritism to Mrs Gumbochuma or disfavor to the people who already held offer letters in respect of that land. These letters were withdrawn as a result.</p> <p>The state lined up witnesses where evidence looks relevant to the matter at hand.</p> <p>The applicant is dissatisfied that the state did not spell out the correct “laid down procedures” which the accused was supposed to have followed. They argue further that Cabinet Ministers have no code of conduct given to them. I have my own reservations about that. What cannot be denied though is that Cabinet Ministers take an oath before appointment to that office ......</p> <p> </p> <p>In count 4, it was being alleged that the accused person had flouted tender procedure. The applicant argues that since the accused person is not an accounting officer for that procuring entity, he could not have committed the crime. The state however wants to prove that the accused person chaired a meeting that led to the awarding of the tender unprocedurally.</p> <p> </p> <p>The defence are raising what must be regarded as triable issues throughout in their exception whereas the state pointed out that they would expect that exception would be raised where</p> <p> </p> <p>(i)         The charge does not disclose reasonable sufficient particulars to inform the accused person of the nature of the charges against him as required in s 146 (2) (b) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>]...”</p> <p> </p> <p>            The first respondent went on to rule that detailed explanations and a request to the state to provide them “from the word go or at least in their responses to the letters written would be tantamount to attempting to give evidence from the bar” In my reading and interpretation, what the  first respondent was stating was that, the accused was not entitled to the information or disclosure of the procedures he flouted not only in the charge but even where he requested for such particulars. Such a ruling was wrong in law, common sense and logic not only because the particulars omitted from the charge and further requested for and denied would be reasonably required to inform the accused of the nature of the charge, but also because a refusal and denial of the same would violate fair trial standards.</p> <p>A criminal trial is not a game of hide and seek but a pursuit for justice. See <em>S</em> v <em>Godfrey Gandawa and 2 Others</em> HH 478/18; <em>S and Anor</em> v <em>Machaya and 7 Others</em> HH 442/19. The State must be open to the defence by advising of the evidence to be adduced and documents to be produced. For the State to withhold relevant information even when requested to and for the trial court to endorse the illegality of withholding evidence on the basis that it is a triable issue would offend fair hearing rights of an accused and clearly would be unconstitutional. This was the situation in the proceedings under my review herein. In my judgment therefore, it would be a violation of fair trial standard to say to an accused as done in this case, “You acted contrary or inconsistently with your duties in doing this and that with a criminal intent. As to what and how you ought to have discharged your duties you will be appraised in the course of the trial.” An approach like this would by any measure be prejudicial to an accused since he would have to be preparing and mounting a defence as the trial progresses with facts already known to the State but withhold from the accused unfolding. In the process of preparing his defence in the midst of trial the accused risks an adverse inference being drawn against him for failure to disclose all material facts in a defence outline where he has elected to testify.</p> <p>            In the judgment of the first respondent the crisp issue which he was requested to address was the adequacy of the averments to be included in a charge under s 174 as charged more particularly by ruling on whether or not a failure or omission to include a standard procedure to be followed by the accused in the discharge of duty was a necessary and material ingredient of the charge. The state for its part submitted quite wrongly that this was a matter of evidence. The first respondent wrongly agreed with the second respondent’s submission. Although neither counsel or the court addressed the point, there is provision for a defect in a charge being cured by evidence at trial. Section 203 of the CPEA provides as follows:</p> <p>            “203 Defect in indictment, summons or charge may be cured by evidence</p> <p>When an indictment, summons or charge in respect of any offence is defective for want of the averment of any matter which is an essential ingredient of the offence, the defect shall be cured by evidence at the trial in respect of the offence proving the presence of such a matter which should have been averred unless the want of such averment was brought to the notice  of the court before judgment.”</p> <p> </p> <p>If one unpacks the quoted provision, it is apparent that an omission to aver an essential ingredient of an offence charged renders the charge defective. The defect must however be raised by the accused person before judgment. If so raised, the issues must be deliberated upon by the court and a determination given. If not raised prior to judgment, then the defect shall be cured by evidence.</p> <p>Following on the above, it was a misdirection on the part of the first respondent to fail to answer the question whether or not the objection raised in the form of the want of averment of the standards which the applicant acted contrary to or inconsistently with was an essential ingredient of the offences charged. It was wrong to determine that the issue was evidential. Equally the second respondent as prosecutor was also wrong to hold the view that the question raised stood to be cured by evidence.</p> <p>The applicant raised at least five grounds of review in this application. They are as follows:</p> <p>1.         That the ruling made by the first respondent is so outrageous in its defiance of logic that no reasonable magistrate applying his mind to the exception would have arrived at such a decision. The first respondent simply did not consider the exception at all. He did not address his mind to the fact that the exception alleged that an essential element of the offences alleged was not contained in the charges.</p> <p>2.         The first respondent in his ruling reviewed and commented upon evidence which was not led before the court. That constitutes a gross irregularity justifying the setting aside of the ruling.</p> <p>3.         The first respondent was biased and showed interest in the cause before him. He prejudged the exception which had been filed even before he had read through the exception</p> <p>4.         The first respondent openly confessed that he was conducting the proceedings under pressure from certain persons. He was therefore not independent and impartial as his duties required him to be.</p> <p>5.         The second respondent did not have title to prosecute the applicant. He was aware of the constitutional Court Order in <em>Reni Nyagura</em> v <em>Lanzani Ncube N.O and Ors</em> CCZ 53/18 but did not disclose the effect of that order on his legal capacity to prosecute the applicant.</p> <p>I have in my judgment noted and accepted that the first respondent misdirected himself in how he dealt with the exception raised more particularly in that he did not determine the crisp issue which fell for determination which was the adequacy and validity of a charge under s 174 wherein details of the standard or procedures which the accused was guided by and should have followed are not averred. I have determined that the averments as aforesaid constitute a necessary and material ingredient to sustain a charge under s 174 as discussed. I am therefore persuaded to accept that the first ground of review was established and proven by the applicant on a balance of probabilities. The absence of the averments vitiates the charge as no offence is disclosed by a charge of acting contrary to or inconsistently with one’s duties where the details of the duty how the duty, should have been carried out are wanting or lacking in the charge. It will be noted that in all the 4 counts this essential averment or ingredient was not included in the charges. The charges should have clearly revealed with sufficient particularity that there are identified procedures in place, the duties, of the applicant in regard thereto and his conduct which if pitted against the procedures and his duties would show the inconsistency or contrary manner of discharging the duties. The intention of showing favour or disfavour would arise from the proven devious conduct or be even inferred.</p> <p>In view of the determination I have made on the first ground of review, there is little to be achieved by interrogating the remaining four grounds of review as the result and order which I propose to make would not change by reason of any decision I may make on each of them individually. Suffice however to note that there are on record discenible signs of impatience exhibited by the first respondent who appeared intent to have the trial progress. Some remarks which the first respondent made were unfortunate if not injudicious. For example, he commented that he did not expect that anything else would come between the commencement of the trial and “whatever event could intervene in between.” In other words, the first respondent could by those comments be mistakenly interpreted as having perceived the filing of the exception as an unwelcome intervention when he was intent on the trial commencing. The first respondent also made comments that “Special anti-Corruption Courts” are trial courts and certainly not remands courts Onlookers naturally put pressure on the court so that they decide on these matters expeditiously.” The first respondent then made another comment that “I cannot do more than urge the parties to criminal trial to run with the courts and not walk when the court is running.”  These comments were unfortunate and indeed Mrs <em>Fero</em> for the second and third respondents conceded that the first respondent appeared excitable. The same applies to comments he made that the state had witnesses whose evidence was relevant yet no evidence had been placed before him by any witness. The impartiality of a judicial officer is a constitutional issue and it forms one of the cornerstones of the justice delivery system. Being a judicial officer is a position of honour and trust with judicial power deriving from the people. It is important that in the exercise of the judicial function, the judicial officer must remain guarded and refrain from <em>inter alia</em> passing comments and remarks which may be construed as a compromise to the judicial officer’s impartiality.</p> <p>A legal procedural issue was raised by Mrs <em>Fero</em> in her heads of argument. She correctly pointed out that a superior court should only intervene in uncompleted proceedings of an inferior court in exceptional circumstances where there is a gross irregularity. She referred to the decision of the Supreme Court in <em>Attorney General</em> v <em>Makamba </em>2005 (2) ZLR 54 (S) at 64 C-F where MALABA JA (as he then was) stated-</p> <p>“The general rule is that a superior court should only intervene in uncompleted proceedings of the lower court only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”</p> <p> </p> <p>The above principle is indeed trite if not a rule of thumb not only in this jurisdiction but</p> <p>in most jurisdictions. The inferior courts are courts of law created to discharge their judicial mandates. The superior court performs a supervisory and oversight role over inferior courts. The superior court should therefore avoid interfering with the workings of the inferior court unless it is absolutely necessary.</p> <p>            In this application, I determine that proceeding to a trial on a charge which does not disclose an offence and where there has been no compliance with the requirements of s 146 of the CPEA and where necessary particulars to enable the accused to prepare his defence have been denied him amount to a violation of the accused’s right to fair trial standards and a fair hearing. The violation of the right to fair trial standards and a fair hearing is an exceptional circumstance warranting the intervention of the superior court. Fortunately for the due administration of justice, the consequences of the intervention in this matter do not put the case to an end. The effect of the intervention is to create a level playing field and achieve a fair trial for the applicant. the integrity of the criminal justice system requires such intervention lest the court are seen as kangaroo courts which do not uphold the rule of law. There should be no compromise on matters to do with violation of absolute rights like the right to a fair hearing. I considered this matter as crying out for intervention and in any event, it is a moot point whether the nature of the intervention in this case would not be one to be lauded since the court simply directs the lower court on ensuring that procedures are followed to attain justice. It is in any case refreshing to note that the Supreme Court has not attempted to define or limit the circumstances where an intervention in uncompleted proceedings would be justified. It follows that the facts and circumstances of each case will in a given case justify the intervention or its refusal as the case may be.</p> <p>I consider it appropriate to comment on the conduct of the State prosecuting counsel. The prosecutor’s role is pivotal in the criminal justice delivery. The Prosecutor General in terms of s 260 of the Constitution is independent and not subject to the direction of anyone in regard to decisions he makes to prosecute a person on a case. This discretionary power is only reviewable on limited on constitutional grounds or bad faith. The decision which the Prosecutor General and his prosecutors make impact heavily on the lives and liberty of accused persons.  The discretion which they exercise should be delicately exercised with deliberation and thoroughness. There should be due regard paid to fair trial rights of an accused. The right is absolute. I repeat my observations that I found it thoughtless and frivolous that such an important matter involving an Ex Minister and as such being a matter of immense public interest could be scuppered or torpedoed by belligerence on the part of the prosecutor in withholding information which was allegedly available. This was a case in which  the allegations were that the applicant ought to have acted in a certain manner but abused his duties by acting in the manner charged, How any reasonable prosecutor would have decided that an averment as to what the norm was so that the applicant could appreciate how he abused his duties by acting in the manner charged was not a necessary averment or ingredient in a charge was alarming. Since charges of corruption and abuse of office have become topical, it is hoped that trials will not be scuppered by prosecutors withholding information necessary for an accused to properly plead to the charge and compose an informed defence.</p> <p>I now conclude by dealing with whether or not to grant the applicant’s prayer. Before I do that, I should mention that Mrs <em>Fero</em> raised an issue at the end of the hearing that the applicant was in contempt of court because he was on an outstanding warrant of arrest. She however capitulated and submitted that this application was filed before the issuance of a warrant of arrest. Mr <em>Magwaliba</em> objected to the propriety of Mrs <em>Fero</em> raising the issues of contempt of court and submitted that the proceedings relating thereto were subject of a pending appeal; under case No. SC 358/19. It would be procedurally wrong for me to make a pronouncement on a matter pending on appeal. Mrs <em>Fero</em> correctly abandoned the issue.</p> <p>At the hearing Mrs <em>Fero</em> did not address the court on the appropriate relief to give in the event that the application was upheld. When I raised the issue with her she submitted that if the application is upheld I should act in terms of s 29 (2) (b) (iii) of the High Court Act, <em>Chapter</em> <em>7:06</em> and correct the proceedings by setting aside the first respondent’s order and substituting it with an order which the first respondent should have made. Mr <em>Magwaliba</em> submitted that if I was inclined to substitute the order, I should remit the case for determination before a different magistrate. The challenge I have is that Mrs <em>Fero</em> did not apply for an amendment to the charges. If both counsel had agreed on the addition of the missing ingredients or averments to the charge as prayed for by the applicant, I would have corrected the proceedings by simply setting aside the first respondent’s ruling and ordered that the trial should proceed on the amended charges as agreed. I am constricted by the absence of an application to amend the charges and there is also on record no facts adduced by the state as would enable that an appropriate amendment be interrogated by the court. This is so because the second respondent did not disclose the information insisting wrongly that the information was a trial issue.</p> <p>Resultantly, I determine that</p> <p>(a)        The first respondent ruling dismissing the applicant’s exception to the charges is hereby set aside.</p> <p>(b)        The failure to allege essential averments on the standards and procedures which the applicant ought to have followed and allegedly acted contrary to or inconsistently with his duties as well as a failure to allege the duties which the applicant abrogated vitiates the charge sheet and renders it a nullity.</p> <p>(c)        In the event that the Prosecutor General determines to prosecute the applicant on any amended charges, the fresh proceedings shall be commenced before a different magistrate other than the 1st respondent, H Mujaya Esquire.</p> <p>(d)       There be no order as to costs.</p> <p> </p> <p> </p> <p><em>Mhishi Nkomo Legal Practice</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, 2nd &amp; 3rd respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/562/2019-zwhhc-562.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=47595">2019-zwhhc-562.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/562/2019-zwhhc-562.pdf" type="application/pdf; length=423622">2019-zwhhc-562.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/trial">Trial</a></li></ul></span> Wed, 13 Nov 2019 10:06:03 +0000 Sandra 9429 at https://old.zimlii.org S v Tapfuma (HH 565-19, B1287/19) [2019] ZWHHC 565 (23 August 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/565-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DOUGLAS TAPFUMA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE,15 &amp;  23 August, 2019</p> <p> </p> <p> </p> <p><strong>Appeal against refusal of bail.</strong></p> <p> </p> <p><em>S</em> <em>Mahuni</em> , for the appellant</p> <p><em>E</em> <em>Mavhuto</em> with <em>A</em> <em>Kumire</em> for the respondent</p> <p> </p> <p> </p> <p>MUZOFA J: This is an appeal against refusal of bail pending trial by the Magistrates Court.</p> <p>The applicant is facing three counts of criminal abuse of duty as a public officer in contravention of s 174 (1) (a) of the Criminal Law (Codification and Reform) Act, [<em>Chapter 9:23</em>].</p> <p>The applicant was the principal director, State Residence, Office of the President and Cabinet. In the first count, it is alleged that on 10 April 2018 the applicant purchased two personal Toyota Hiace mini buses from South Africa. He assigned one Bonane Ganyane to facilitate clearance of the vehicles on behalf of the department of the State residence. On 20 April 2018 the applicant applied for duty free certificates in the name of the President’s department and they were granted. Thereafter he registered the vehicles at Central vehicle registry in the name of the President’s department. The duty payable and evaded was $3 180.</p> <p>On the second count, it is alleged that on 5 June 2018 the applicant purchased three personal vehicles a Toyota Altezza, Honda Accord and a Nisan Tiida from South Africa. He assigned Cousin Gwanyanya to clear the vehicles in name of the President’s department. Using the same <em>modus operandi</em> as in the first count the applicant obtained duty free certificates and registered the vehicles under the name of the President’s department. The duty payable and evaded was $4 340.</p> <p>            In  respect of the third count, the applicant purchased two personal Honda Fits. He sent Cousin Gwanyanya. Using the same <em>modus operandi</em>, the motor vehicles were cleared by Zimbabwe Revenue Authority and subsequently registered. By doing so the applicant evaded paying duty for vehicles in the sum of $4 416.</p> <p>            In all the three counts the applicant was aware that the vehicles did not belong to the department of State Residences or the President’s Department. He assigned the officials from the department who claimed travel and subsistence allowances to further his personal business.</p> <p>            In the affidavit attached to the Form 242 the investigating officer opposed bail on the grounds that,</p> <ul> <li>There is overwhelming evidence against the accused which may influence him to abscond trial.</li> <li>The accused is facing a serious offence which he committed using his influential position as a senior government employee and is likely to interfere with witnesses.</li> <li>The accused is also under investigation where he facilitated the illegal importation of over 100 vehicles - ZACC RR 12/01/19.</li> </ul> <p>            In his ruling the Magistrate took into account the seriousness of the offence, the overwhelming evidence against the appellant which could induce him to abscond and the likelihood to interfere with state witnesses.            On those factors the Magistrate found that the appellant was not an appropriate candidate for admission to bail.</p> <p>            Two grounds of appeal were set out to impugn the decision, that the state failed to prove that there were compelling reasons for the appellant to be denied bail and that the court erred in finding that the appellant is a flight risk.</p> <p>Although the magistrate did not specifically traverse the circumstances of the basis for the likelihood to abscond, he referred briefly to the factors. The factors to be taken into consideration in assessing the risk were spelt out in <em>Aiten and Another</em> at 254 that:</p> <p>“In judging this risk, the court ascribes to the accused the ordinary motives and fears that     sway human nature. Accordingly, it is guided by the character of the charges and the         penalties which in all probability would be imposed if convicted, the strength of the State case, the ability to flee to  a foreign country and the absence of extradition facilities..”</p> <p> </p> <p>            With regards to seriousness of the offence counsel for the appellant argued that, that on its own should not lead to denial of bail. This is the correct position of the law. The weighting of the offence should be taken in light of the available evidence and the possible penalty. I do not agree with counsel for the appellant’s submission that for the total prejudice of $11 936 the offence is likely to attract a fine in the event of conviction. Clearly counsel failed to appreciate the gist of the offence. The appellant was not charged with the offence of smuggling as correctly stated by the magistrate. It is the abuse of his official position to import vehicles in the name of the State and use state resources to his personal benefit. This is the conduct that, if proved is taken into account, the total prejudice an additional consideration but not the determinant factor in sentencing upon conviction. It is the use of the state machinery to his benefit that is punishable. Apparently, what the State alleged was not denied. Counsel insisted that the process was above board, it was approved by the Chief Secretary. That would not absolve him if the vehicles were for his personal use. The penalty provision provides for a fine not exceeding level thirteen or imprisonment up to fifteen years. It seems the state has a solid case so far .Clearly this is a serious matter which is likely to attract imprisonment. This is where the ordinary human inclinations come into play. The higher the probabilities of a conviction, the greater the incentive to abscond.</p> <p> The court’s attention was drawn to the events before the appellant was arrested. That investigations commenced in December 2018 he was cooperating with the investigating officers. He had the opportunity to abscond but he did not. It was submitted that the State did not point to any instance where a likelihood to abscond can be inferred from. The Court is alive to case law that such should exist before a finding can be made. However each case depends on its circumstances taken in totality with other factors. It is my considered view that at the time of the investigations the circumstances were different. There was no real incentive to abscond. It was an investigation. The appellant has since been arrested, he is now aware of the evidence and the likely penalty, this creates a different outlook of the circumstances. There is no reason to interfere with the magistrate’s decision on this aspect.</p> <p>            This takes the Court to the next point on the interference of witnesses. The magistrate found that the appellant, a senior government employee is likely to interfere with witnesses. It was argued for the appellant that the State did not show any attempt by the appellant to interfere with witnesses on the authority of  of <em>R</em> v <em>Maharaj</em> 1976 (3) SA 205.</p> <p>            It must be borne in mind that the circumstances of the commission of the offence and the proximity of the accused to the witnesses both geographically and relationally should of necessity be taken into account too. It is not an absolute rule that where there is no prior attempt to interfere with witnesses therefore the accused may not do so. In this case, according to the investigating officer, most of the witnesses were the appellant’s juniors. At the time of arrest, the appellant was still employed in the office. As investigations come to finality he is now aware of the witnesses who were his subordinates. The court cannot ignore the fact this is a senior government employee who to some extent has influence. I did not hear any indication that he had been relieved of his duties but there was some submission before the magistrate that he had been moved to head another department. He remained influential and an inference that if released on bail he could still wield his power and reach out to witnesses cannot be farfetched. I cannot fault the magistrate on the finding that he is likely to interfere with witnesses.</p> <p>            I note that the investigating officer indicated that bail was also opposed on the basis that the appellant was under investigation ZACC RR 12/01/19. The magistrate did not consider that as relevant. The court cannot close its eyes to such a submission. What it means is that the appellant has an additional incentive to abscond. The very fact that it is before the court cannot be ignored although the weighting should be taken together with other factors.</p> <p>            As properly submitted for the appellant, the law is very clear on the right to bail pending trial as set out in s 50 (1) (d) of the Constitution. This is because at this stage, the presumption of innocence is in his favour. However, that right is not absolute. It can be interfered with where there are compelling reasons justifying continued detention. The court has to be careful to strike a balance between the proper administration of justice, the interests of the public and the interest of the appellant’s freedom. In this case it is tilted more in favour of the proper administration of justice, particularly to secure the appellant’s attendance for trial and non interference with the witnesses. There are compelling reasons to interfere with appellant’s liberty. A reading of the state papers suggests the matter is ripe for prosecution. The appellant should be tried and know his fate so that justice is seen to be done, the public should trust the justice delivery system to do what is right.</p> <p>            I find no basis to overturn the decision of the magistrate.</p> <p>            Accordingly, the appeal against refusal of bail is dismissed.</p> <p><em>Mahuni and Matutu Attorneys-at Law</em>, appellant’s legal practitioner</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p>1992 (1) ZLR 249 (S)</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/565/2019-zwhhc-565_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23176">2019-zwhhc-565.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/565/2019-zwhhc-565_0.pdf" type="application/pdf; length=226417">2019-zwhhc-565.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pending-appeal-bail">pending appeal for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 13 Nov 2019 08:03:35 +0000 Sandra 9426 at https://old.zimlii.org S v Chitanga (HMA 48-19, CA 55/19 Ref Case CRB CH 23/19) [2019] ZWMSVHC 48 (23 October 2019); https://old.zimlii.org/zw/judgment/masvingo-high-court/2019/48 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>PROSPER CHITANGA</p> <p>vs</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J &amp; WAMAMBO J</p> <p>MASVINGO, 16th &amp; 23RD October 2019</p> <p> </p> <p> </p> <p> </p> <p><strong>CRIMINAL APPEAL</strong></p> <p> </p> <p><em>T. Chivasa,</em>  for the appellant</p> <p><em>Ms M. Mutumhe,</em> for the respondent</p> <p> </p> <p> </p> <p>MAWADZE J:           This is an appeal in respect of both the conviction and sentence.</p> <p>The appellant was convicted after a protracted trial by the Magistrate sitting at Chivi on 1 July, 2019 and he was represented by <em>Mr Chivasa</em>.</p> <p>The appellant was convicted of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [<em>Cap 9:23]</em> and sentenced to 4 years imprisonment of which 1 years imprisonment was conditionally suspended for 5 years on the usual conditions of good behaviour. A further 1 year was suspended on condition the appellant paid restitution in the sum of US$471 and RTGs133.21 through the Clerk of Court at Chivi on or before 31 August 2019. The appellant has to serve an effect sentence of 2 years imprisonment.</p> <p>At the time of the hearing of the appeal <em>Mr Chivasa</em> submitted that the appellant who has been in prison for about 4 months has already paid the restitution in the sum of US$471 and RTGs133.21.</p> <p>The facts of this matter which give rise to this appeal are largely common cause save for the appellant’s role in the commission of the offence.</p> <p>The appellant was jointly charged with three other accomplices Cordination Magavhe aged 28 years residing at Chivi Growth Point, Babra Masvosvere aged 20 years residing in Beitbridge and Shelter Ezra aged 28 years residing at Chivi Growth Point. The other three accomplices Cordination Magavhe, Babra Masvosvere and Shelter Ezra pleaded guilty to the charge and each was sentenced in the same manner as the appellant. The appellant is the only one who denied the charge hence the matter proceeded to trial.</p> <p>The offence of fraud in this matter was committed with surgical precision. The three accomplices Cordination Magavhe (Cordination), Barbra Masvosvere (Babra) and Shelter Ezra (Shelter) together with the appellant are said to have hatched a plan to defraud Mukuru.Com Money Transfer Company branch situate inside N. Richards Wholesale at Chivi Growth Point. As already said the only disputed fact is the appellant’s role or involvement in this criminal enterprise as appellant denied any role or knowledge of the commission of the offence.</p> <p>Cordination as his name denotes was the co-ordinator of this whole criminal enterprise as he was an ex-employee of Mukuru.Com Money Transfer Company at Chivi Growth Point. He provided a clip board, counterfeit audit papers titled Mukuru.Com, 2 T-shirts inscribed “Mukuru Send Money Home” and some cash box keys which he had stolen while employed at Mukuru.Com Transfer Company branch situate at Chivi Growth Point. It is Cordination who briefed the other accomplice of the tactics to be employed in committing the fraud.</p> <p>Babra was assigned the prominent role of executing the fraud and stealing of the money at Mukuru.Com Transfer Company branch at Chivi Growth Point. This is probably because she was the only one who was not a resident at Chivi Growth Point as she resides in Beitbridge and was therefore not known at Chivi Growth Point.</p> <p>The appellant’s role, which he disputes, is that he provided a lap top from which the counterfeit Mukuru.Com fraudulent documents were generated and acted as a sentinel during the execution of the offence by Babra.</p> <p>Shelter, again as her name denotes provided shelter for the culprits as the plan to commit this fraud was polished up at her residence at Chivi Growth Point, she offered accommodation to Babra and provided a handbag Babra used.</p> <p>The fraudulent plan was executed in the following manner. On 11 January 2019 Babra proceeded to the Mukuru.Com Company branch at Chivi Growth Point inside N. Richards Wholesale where she posed as auditor from Mukuru.Com Company who had come to carry out official duties at the branch. She was wearing the t-shirt inscribed “Mukuru Send Money Home”, was carrying a handbag and a clipboard attached with the fake or counterfeit Mukuru.Com Company documents. Babra carried herself as an Auditor from Mukuru.Com Company Head Office in Harare who had come to perform her duties at the Mukuru.Com Company branch at Chivi. She approached the complainant Raviro Chirape a cashier employed at the Mukuru.Com Company branch at Chivi Growth Point. Babra then proceeded to carry out “an audit” inside the booth at Mukuru.Com branch at Chivi Growth Point and Raviro Chirape believed Babra was an auditor. Babra proceeded to check the financial books and cash on hand in order to carry out the reconciliation. At the material time there was US$5 475 and $533 bond notes which Barbra counted with Raviro Chirape. After about an hour Barbra asked the cashier Raviro Chirape to go and buy for her some water to drink. When the cashier went to buy the water Babra simply took the money at the Mukuru.Com Company branch. After the cashier returned Babra later left with the cash and caused the cashier to complete fake audit forms which showed that Babra had carried out audit duties unaware that Babra had stolen the money in her absence. The culprits then regrouped at Shelter’s house and proceeded to Zvishavane to share the loot.</p> <p>The matter came to light the same day when Raviro Chirape the cashier at Mukuru.Com Company branch at Chivi Growth Point later realised that all the money in her possession had been stolen. The CID details from Mashava later on investigated the matter and on the same day arrested Cordination and the appellant with the help of CCTV at N. Richards Wholesale at Chivi Growth Point. Upon their arrest CID details recovered United States dollars from Cordination and the appellant. Further an HP Laptop bearing serial numbers of counterfeit documents used by Babra when she misrepresented herself to Raviro Chirape, the cashier at Mukuru.Com Company Branch at Chivi Growth Point as an auditor were recovered. Thereafter Cordination led to the arrest of Babra who had returned to Beitbridge and also accused Shelter. The amount of US$760, $67 bond notes was recovered from Babra and US$1 800 from Shelter. Both the appellant and Cordination were found with some cash. Further the t-shirt inscribed “Mukuru Send Money Home”, the clipboard, a purse, the attire Babra was wearing posing as an auditor were recovered at Shelter’s residence thrown inside a blair toilet.</p> <p>The total cash stolen is US$5 475 cash and $533 bond cash. The amount recovered in US$3 589 cash and $75 bond cash.</p> <p>The appellant gave a very lengthy defence outline covering 23 paragraphs. In brief the appellant denied conniving to commit the fraud with Cordination, Babra and Shelter. The appellant said the only person he knew was Cordination and he was not known to Babra and Shelter. The appellant denied taking any part in the commission of the offence. He denied playing any role in the commission of the offence or getting any share of the loot. The appellant however admitted to the following facts which are;</p> <ul> <li>that he is a very close friend of Cordination an ex-employee of Mukuru.Com Company branch at Chivi</li> </ul> <p> </p> <ul> <li>that he is well known to the cashier, Raviro Chirape, at Mukuru.Com Company branch at Chivi Growth Point as he frequents N. Richards Wholesale or transacting at the said Mukuru.Com Company branch</li> </ul> <p> </p> <ul> <li>that on the day in question on 11 January 2019 he indeed was at N. Richards Wholesale Chivi Growth Point where the Mukuru.Com Company Branch is situated hence his images were captured on CCTV. However, the appellant said his mission at those premises was not to carry out any surveillance in furtherance of any criminal conduct but to meet a female friend Eustina Mbaradze and for shopping purposes inside N. Richards Wholesale</li> </ul> <p> </p> <ul> <li>that on the way into N. Richards Wholesale he passed by the Mukuru.Com booth which is by the entrance and greeted the cashier who is the complainant Raviro Chirape</li> </ul> <p> </p> <ul> <li>that the fraudulent documents used by Babra to commit the fraud were generated from his HP Laptop. The appellant however said this was done by his friend Cordination who had unfettered access to his laptop which had no password and that this was done without the appellant’s knowledge or approval</li> </ul> <p> </p> <ul> <li>that he was found in possession of money stolen from Mukuru.Com Company branch at Chivi Growth Point being United States Dollars. The appellant however said he had been given this money by his friend Cordination who owed the appellant some money and that it was not the appellant’s share of the loot.</li> </ul> <p> </p> <p>After hearing evidence from the complainant Raviro Chirape the cashier at Mukuru.Com Company branch at Chivi, Babra a convicted accomplice who had been properly warned and the investigating officer Nxumalo Mxolisi all for the state and from the appellant and his defence witness Cordination also a convicted accomplice, the court a<em> quo</em> found in favour of the state and dismissed appellant’s version of events or evidence as false. Irked by this decision the appellant approached this court on appeal and the grounds of appeal in respect of both conviction and sentence are as follows: -</p> <p>“<em>GROUNDS OF APPEAL</em></p> <ol> <li><em>RE: CONVICTION</em> <ol> <li><em>The learned Magistrate erred in law when he convicted the appellant of fraud as defined in Section 136 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] in the absence of proof beyond reasonable doubt particularly in that; </em></li> </ol> </li> </ol> <p> </p> <ul> <li><em>He wrongfully made inferences from circumstantial evidence which inferences were not the only reasonable inferences which could be made in the circumstances.</em></li> </ul> <p> </p> <ul> <li><em>He wrongfully relied on evidence of an accomplice in circumstances where the risk of false incrimination was very high and had not been eliminated.</em></li> </ul> <p> </p> <ul> <li><em>He wrongfully rejected the appellant’s explanation in his defence which was probable in the circumstances.</em></li> </ul> <p> </p> <ol> <li><em>WHEREFORE appellant prays for the success of the appeal and for the setting aside of the decision of the court a quo convicting the appellant of the offence and substitution of the same with a verdict of Not Guilty</em>.”</li> </ol> <p> </p> <p>In relation to sentence the appellant is of the view the community service should have been imposed in light of the mitigating factors which include inter alia the delay of 5 months in finalising the matter, that the appellant is a first offender, that half of the stolen money was recovered, that the amount stolen was not substantial, that the sentence imposed was within the threshold of 24 months effective sentence and that the appellant is a suitable candidate for community service.</p> <p>I should commend <em>Mr Chivasa</em> for his detailed and well researched heads of argument. Equally so I need to commend the learned trial Magistrate for a very lucid judgment and a clear appreciation of not only the facts in issue but the law involved.</p> <p>The simple task for this court is to assess as regards conviction if the court <em>a quo</em> properly applied the principles of circumstantial evidence and or the liability of co-perpetrators.</p> <p>The liability of co-perpetrators is provided for in section 196A of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. This provision simply reinforces the common law principle or doctrine of common purpose which entails that for the doctrine of common purpose to apply in any case it has to be proved that the accused did something to associate himself with the actions of the person who actually committed the offence knowing that the other person intended to commit the said offence or foreseeing that possibility see <em>State</em> v <em>Mubaiwa &amp; Anor</em> 1992 (2) ZLR 362 (S); <em>State</em> v <em>Chauke &amp; Anor</em> 2000 (2) ZLR 494 (S) at 497 A.</p> <p>This position is well articulated by the esteemed author Burchell in South African Criminal Law and Procedure Volume 1, 3rd Edition at page 307 wherein the learned author said;</p> <p>“where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for the specific criminal conduct committed by one of their number which falls within the common design”</p> <p> </p> <p><em>In casu</em>, if it is proved that the appellant indeed connived with Cordination or Babra or Shelter or all of them in perpetrating this fraud, the appellant’s criminal liability irrespective of his actual role may be inferred on the basis of the doctrine of common purpose. In specific terms it is said the appellant agreed to commit this offence, that he provided the laptop used to generate the fraudulent documents, that he acted as a sentinel during the commission of the offence and that he got the spoils of the loot. This is however denied by the appellant but the court <em>a quo</em> disbelieved him.</p> <p>Babra’s evidence is that Cordination who was the brains behind this fraud briefed her that the appellant would be engaging in surveillance during the execution of the actual fraud by Babra as a sentinel to ensure Babra’s safety. Indeed, Babra was given by Cordination and actually used the fraudulent documents generated from the appellant’s laptop. In her evidence Babra said that although she personally had not met the appellant some person Cordination told her was the appellant would call her while she was executing the fraud giving her real time information of what was happening around the crime scene at Mukuru.Com Company premises at Chivi Growth Point. Babra said after successfully executing the fraud she met Cordination and Shelter after which they proceeded to Zvishavane to share the loot. She said the other person she was told was the appellant was constantly calling them updating them on what was happening at Mukuru.Com Company branch at Chivi Growth Point in the aftermath of the commission of this offence. She said this person was identified by Cordination as the appellant and that the appellant had therefore not joined them specifically for that reason. Lastly, Babra said as they shared the money Cordination reserved another share for the appellant and returned to Chivi to ostensibly give the appellant his share. Indeed, when police detectives first sighted Cordination later that day he was in the company of the appellant at Chivi Growth Point and appellant was later found with part of the money stolen from Mukuru.Com Company that very day.</p> <p>The assessment of the credibility of witnesses is within the domain or province of the court <em>a quo</em>. Babra’s evidence was that although she had not physically met appellant at any stage she was briefed that appellant’s role was to provide surveillance or act as a sentinel and that some other person indeed appraised her on the telephone on what was happening. Indeed, it would have been desirable for the police to have checked the telephone records for all persons involved to verify Babra’s evidence. Nonetheless such an omission in my view is not fatal to Babra’s evidence. Babra was not known to the appellant. She is a convicted accomplice. She had nothing to gain by falsely incriminating the appellant.</p> <p>The question which arises therefore is why would she go out of her way to fabricate the existence and role of a fourth player in the execution of this offence. The court <em>a quo</em> found none and there is no such reason in my view. On that basis she was found to be a credible witness and the danger of false incrimination was found to be none existent.</p> <p>On the other hand, the same cannot be said for Cordination. Despite later pleading guilty to this offence Cordination upon his arrest in the early hours of 12 January, 2019 denied any role in the commission of the offence even after some US$307 had been found under his bed. This can be gleaned from a copy of the police running diary log produced through the investigating officer. Cordination denied ever being involved in this matter and said the money found in his possession was money given to him by his parents (<em>see the version of page 52 recorded in Shona</em>). Apparently he only admitted to the offence when police’s evidence became overwhelming as investigations progressed.</p> <p>When Cordination testified he sought to exonerate the appellant alleging that the appellant played no role. He denied ever telling Babra that the appellant was involved and that the money he gave the appellant stolen from Mukuru.Com was to pay a debt owed to appellant. He further said that he used appellant’s laptop to generate fraudulent documents without the appellant’s knowledge.</p> <p>In my respectful view Cordination’s evidence was properly rejected. He is the appellant’s friend and the two were very close. He admitted under cross examination that he would naturally protect the appellant (<em>see page 46 of the record</em>). Most importantly he initially lied to the police. The court <em>a quo</em> was correct to reject his evidence and assess him as an incredible witness.</p> <p>It is for the said reasons that appellant criminal liability was based on doctrine of common purpose or a co-perpetrator. The court <em>a quo</em> thus found that the appellant was at the scene of crime at N. Richards Wholesale, that he had knowledge of the offence or criminal act, that he worked in cahoots with other accomplices including Babra by manifesting a sharing of common purpose in providing his laptop, acting as a sentinel, providing surveillance and getting a share of the criminal proceeds. The appellant on that basis has the necessary <em>mens rea</em> to commit the fraud see <em>S </em>v <em>Mgedezi &amp; Ors</em>. 1989 (1) SA 687 (A).</p> <p>The next issue to consider is the question of circumstantial evidence.</p> <p>The celebrated case of <em>R</em> v <em>Blom</em> 1939 AD 188 at 202 – 203 outlines <em>how</em> circumstantial evidence should be treated by the trial court in criminal matters. The cardinal principles are that;</p> <ul> <li>that the inference sought to be drawn must be consistent with all proved facts. If not, the inference cannot be drawn</li> <li>that the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is the correct one. See also <em>S</em> v <em>Tambo</em> 2007 (2) ZLR 33 H; <em>S</em> v <em>Marange &amp; Others</em> 1991 (1) ZLR 244(S)</li> </ul> <p>It is competent for a court to return a verdict of guilty solely on circumstantial evidence see <em>S</em> v <em>Shonhiwa</em> 1987 (1) ZLR 215 (S); <em>S</em> v <em>Vhera</em> 2003 (1) ZLR 668 (H) at 650 C.</p> <p>The court <em>a quo</em> applied these principles to the circumstances of this case. The proved facts were juxtaposed with the appellant’s explanation and the trial court concluded that the appellant’s explanation cannot possibly be true. The relevant facts which were considered are not in issue and are as follows: -</p> <ul> <li>Cordination who was the brains behind this fraud is appellant’s close friend. This is admitted by the appellant. In fact, appellant and Cordination were later seen together that very same day by the police.</li> <li>the appellant was present at the crime scene at the material time. This is confirmed not only by the CCTV but by the appellant himself. The appellant’s explanation is that N. Richards Wholesale is a public place and that he wanted to see a friend there and to do some shopping. Indeed, that may be so. The appellant actually passed by the complainant’s booth and greeted her.</li> <li>the appellant was found in possession of some of the stolen cash in United States dollars identified by the serial numbers the very day the money had been stolen. Upon his arrest the appellant as per the investigating officer said he had been given the money by his relatives. However later after the money had been matched with the serial numbers he changed the story and said he was given the money by Cordination as payment for money he was owed by Cordination. It is therefore clear appellant was not consistent in explaining how he became in possession of the stolen money and had therefore told a lie on a material issue.</li> <li>the fraudulent documents used to commit the fraud were generated from the appellant’s laptop. The appellant’s explanation is that Cordination is the one who generated the fraudulent documents using the appellant’s laptop as he had unlimited access to it and it had no password. No further explanation is given as to why Cordination chose to use the appellant’s lap top.</li> </ul> <p>Indeed, each of those facts proven or not in issue, taken in isolation may on their own not lead to any adverse inference. However, when they are considered conjunctively together with the accused’s own explanation a proper adverse inference in my view was made. The close friendship appellant had with Cordination is admitted. Is it plausible that appellant would be paid his debt with the stolen money the very day it was stolen? Why would appellant lie to the police about the source of this money initially? One would raise eyebrows as to why Cordination would choose to use a dear friend’s laptop to generate fraudulent documents and why the appellant did not know about it. The appellant’s presence at the crime scene dovetails with Babra’s evidence as regards appellant’s role.</p> <p>In my view the court <em>a quo</em> assessed the credibility of all the witnesses and made findings of fact. The appellant’s evidence or version of events was rightly rejected. The principles of law applicable to the facts of co-perpetrators or acting in common purpose together with circumstantial evidence are not only well articulated but properly applied to the facts of this case. I find no misdirection at all on the part of the court a quo. The threshold or degree of proof required in criminal matters was achieved. The appellant’s conviction is unassailable in the circumstances. Consequently, the appeal against conviction cannot succeed.</p> <p>In relation to sentence the court <em>a quo</em> gave very cogent reasons as why an effective custodial sentence was appropriate.</p> <p>I share the same view that the option of community service is wholly inappropriate in this case. All the four culprits were given similar sentences in line with the principle of uniformity in treating accomplices in the absence of any objective factors to distinguish their sentences or to treat them differently. The moral blameworthiness of the appellant is very high in this case and deserve severe censure. This was a well-planned and executed criminal act of fraud. There was an element of planning and premeditation. A number of people were involved who played different roles to ensure success of the criminal enterprise. It was a gang offence involving team work. The appellant derived benefit from his criminal conduct and was properly degorged of such benefit by being ordered to pay restitution. As a first offender part of his sentence was suspended on condition of good behaviour. Even after deciding to exercise his rights by pleading not guilty to the charge unlike his accomplices, he was not treated differently. The company from which the appellant and his colleagues stole from provide an invaluable service to the general public and well-being of our economy.</p> <p>At the end of the day a proper balance of the mitigatory and aggravating factors shows that the sentence of community service was wholly inappropriate. It would send wrongful and harmful signals to persons of like mind and put the whole criminal justice system into disrepute. Clearly the appeal against sentence lacks merit.</p> <p>Accordingly, it is ordered that the appeal in respect of both conviction and sentence be and is hereby dismissed.</p> <p>        </p> <p>Wamambo J. agrees ………………………………………….</p> <p><em>Chivasa &amp; Associates</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/48/2019-zwmsvhc-48.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28554">2019-zwmsvhc-48.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/48/2019-zwmsvhc-48.pdf" type="application/pdf; length=356621">2019-zwmsvhc-48.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 29 Oct 2019 12:40:09 +0000 Sandra 9418 at https://old.zimlii.org S v Musimike (HH 595-19, CA 84/17) [2019] ZWHHC 595 (09 September 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/595 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>STEPHEN MUSIMIKE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA &amp; MUZOFA JJ</p> <p>HARARE, 9 September 2019</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>M. H. Chitsaka</em>, for the appellant</p> <p><em>T. Mapfuwa</em>, for the State</p> <p> </p> <p>            MUZOFA J: On the 8th of July 2019 we dismissed this appeal against conviction and sentence. The appellant has requested for the written reasons for the purposes of an appeal, we provide them herein.</p> <p>            The appellant was convicted on a charge of contravening s 174 (1) (a) of the Criminal Law (Codification and Reform Act) [<em>Chapter 9:23</em>], (Criminal abuse of duty as a public officer). He was sentenced to pay a fine of $700 or in default of payment 6 months imprisonment. A further 5 months imprisonment were suspended on the usual conditions. He noted an appeal against both conviction and sentence.</p> <p>            The grounds of appeal were set out as follows:-</p> <p>            “Ad conviction</p> <ol> <li>The court <em>a quo</em> misdirected itself on convicting the appellant when there was no evidence led beyond reasonable doubt that the appellant committed the offence.</li> <li>The court <em>a quo</em> erred in convicting the appellant when all the essential elements of the offence were not proved, in particular the <em>mens rea</em>.</li> <li>The court a quo misdirected itself in basing its conviction of the appellant on the grounds that the appellant had overall say on the issuance of detention documents when in fact evidence to the contrary had been led by the appellant and not disproved by the respondent.</li> <li>The court <em>a quo</em> also misdirected itself in (<em>sic</em>) failure to consider the appellant’s defence which was not disproved by the respondent.</li> </ol> <p>Ad sentence</p> <ol> <li>The court <em>a quo</em> erred in imposing a fine which was unduly harsh without enquiring into the appellant’s ability to pay the same.</li> <li>The court <em>a quo</em> erred in imposing a fine which as unduly harsh to the extent of inducing a sense of shock.”</li> </ol> <p> </p> <p>            The appellant appeared before the trial magistrate jointly charged with his co-accused who was not before this court. The state case was that the appellant and his co-accused were employed by the Zimbabwe Revenue Authority (ZIMRA) based at the Beitbridge Border Post. Appellant was a revenue supervisor. On the 23rd of December 2014 a truck owned by Turkey Trading (Pvt) (Ltd) ( the company) with a liquor consignment from South Africa <em>en route</em> to Zimbabwe was cleared at the Beitbridge Border by a clearing agent known as ASB Freight Services (Pvt) (Ltd) on lender bill entry number C93285. After the clearance, the truck was intercepted by the appellant’s co-accused who referred the truck to the container depot for further examination. At the container depot, the truck was examined and nothing untoward was detected. However the appellant insisted that the detention of the truck continue, no reasons were given for the decision. The appellant and his co-accused did not complete any documentation to show why the truck was detained and why ZIMRA continued to detain it. The truck was subsequently released on the 14th of January 2015 after the company applied to this court in an urgent chamber application for its release.</p> <p>When the matter was heard before us, the appellant withdrew the appeal against sentence. This judgment therefore is confined to the appeal against conviction only.</p> <p>Section 174 (1) of the Criminal Code provides:</p> <p>            “1. If a public officer, in the exercise of his or her functions as such, intentionally;</p> <ul> <li>Does anything that is contrary to or inconsistent with his or her duty as a public officer; or</li> <li>Omits to do anything which it is his or her duty as public officer to do for the purpose of showing favour or disfavour to any person, he shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for a period not exceeding fifteen years or both.</li> <li> </li> </ul> <p> </p> <p>A reading of the section shows that the essential elements of the offence are that,</p> <p>            (i)         the accused person must be  a  public officer</p> <p>(ii)        the accused does an act contrary to his or her duty or omits to do anything    which is within his or her duty as a public officer.</p> <p>            (ii)        the act or omission must be done intentionally</p> <p>See also <em>R </em>v<em> Sacks</em> (1943) SALR 413. Once the state establishes an intentional act or an omission inconsistent with an accused’s duties there is a rebuttable presumption that, the act or omission was intended to show favour or disfavour to another. At the centre of the offence is an act or omission beyond mere negligence or just some neglect of duty. This is what the court in <em>S </em>v<em> Taranhike</em> HH 222/18  had in mind when it  noted</p> <p>                ‘ What emerges  from the definition in s174 as to what constitutes abuse of office is the use of the word “intentionally” in carrying out the act an eschewed act of omission or commission. This means that the conduct constituting abuse must be deliberate, calculated or purposeful. Furthermore, the word abuse itself connotes misuse, exploitation, taking advantage and recklessness in the conduct. The 1979 English case of <em>R </em>v<em> Dytham </em>1979 (2) QB 722 gives an indication of what is required in terms of arriving at an informed conclusion that there was abuse of or neglect of public office. As the court stated therein:</p> <p>“The neglect must be wilful and not merely inadvertent; and it must be culpable in the sense that it is without reasonable excuse or justification.”</p> <p>As further stated therein, the misconduct impugned must be calculated to injure the public interest so as to call for condemnation and punishment.”</p> <p>In this case, the appellant was a public officer, no issue arises out of that requirement. The undisputed evidence in the record is that the truck in question was referred to the container depot by the appellant’s accomplice. The appellant was the supervisor at the container depot. Although there is evidence that the appellant did not personally receive the truck at the depot there is evidence of culpability in his conduct. Appellant confirms that his accomplice handed over the consignment note to him for verification. He confirmed that according to the systems procedure no documentation was made in respect of the truck. In short there was no official reason why the truck was detained by ZIMRA. Appellant did not deny that he gave instructions to the driver of the truck to disengage the horse from the trailer and park the truck. Isaac Masharu’s evidence, that the appellant advised him that the truck had been impounded was not disputed either in his evidence in chief or under cross examination. The utterances were made immediately after the truck was searched at the container depot. The information that the truck was impounded was “technically” correct because the truck spent 21 days under detention. However appellant communicated this, when there was no documentation to support it. If appellant did not know what was taking place, on what basis then did he communicate the information? He communicated the fact that the truck had been impounded yet no proper documentation was available. It was his duty to make sure that whatever communication and order were documented in terms of the procedures because at that point in time he was the authority that communicated the ZIMRA decision. He deliberately omitted to do his duty. That is not all. It seems the truck became an issue at ZIMRA. Christian Magwali engaged appellant with a view to release the truck. Amkela Ndebele also engaged the appellant about the release of the truck. What boggles the mind and where inferences can be drawn is that at all relevant times of engagement the appellant could not release the truck yet there was no official reason why the truck was impounded.</p> <p>            From his evidence the appellant said he engaged his superiors and they agreed to send someone to South Africa to investigate the importer. If this was indeed the case at least the investigating officer should have been favoured with this information. No evidence was placed before the court about this investigation. In any event the appellant was seized with the matter, obviously he had access to all the documentation in respect of the truck, save for the reasons for impounding it. The appellant was well aware of the non- documentation and was complicit in the unlawful detention of the truck.</p> <p>The issue that arises is whether his conduct was just an oversight or the conduct constitutes an abuse calculated to disadvantage the truck owner. There was evidence of the abusive conduct of the appellant towards the truck owner and the clearing agents. This kind of offence is sometimes difficult to connect the dots, because the public official would just sit on work in order to induce a consideration. In this case the appellant could not possibly take over an investigation of an impounded truck when in the first place the truck was not properly impounded. The Magistrates’ reasons for convicting the appellant are very clear. The inconsistencies highlighted by the appellant are of no consequence, they do not go to the substance of the conviction.</p> <p>It is for these reasons that we dismissed the appeal.</p> <p> </p> <p>Musakwa J Agrees</p> <p> </p> <p> </p> <p> </p> <p><em>Mutandiro, Chitsanga and Chituwa</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/595/2019-zwhhc-595.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27207">2019-zwhhc-595.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/595/2019-zwhhc-595.pdf" type="application/pdf; length=226272">2019-zwhhc-595.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2018/222">S v Taranhike &amp; 5 Others (HH 222-18, CRB 18/18) [2018] ZWHHC 222 (24 April 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 24 Sep 2019 10:25:56 +0000 Sandra 9408 at https://old.zimlii.org S v Mupfumira (SC 71/19, Civil Appeal No. 482/19) [2019] ZWSC 71 (03 September 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/71 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 1<br /> PRISCAH MUPFUMIRA<br /> v<br /> THE STATE<br /> SUPREME COURT OF ZIMBABWE<br /> HARARE, AUGUST 26, 2019 &amp; SEPTEMBER 3, 2019<br /> C Chinyama with R Tsvaki and Z Makwanya, for the appellant<br /> Ms S Fero with A Kumire and C Chakawa, for the State<br /> IN CHAMBERS<br /> GOWORA JA: This is an appeal against the refusal of bail in terms of s 121 (1) (b) as read with s 121(8)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], “the Act” or alternatively with r 67 (1), (2) and (3) of the Supreme Court Rules, 2018.<br /> FACTUAL BACKGROUND<br /> The appellant is Priscah Mupfumira, a politician and a member of Parliament in the government of Zimbabwe. Until recently she was also the Minister of Tourism and Hospitality.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 2<br /> On 25 July 2019 she was arrested by members of the Zimbabwe Anti-Corruption Commission and is facing seven counts of criminal abuse of office in terms of s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].<br /> In the first count to the charges levelled against her, it was alleged that sometime in 2014 after having been appointed the Minister of Public Service, Labour and Social Welfare, the appellant, taking advantage of her position as the Minister responsible for the National Social Security Authority (NSSA) a parastatal under the ministry, instructed one Ngoni Masoka, the then Permanent Secretary of the ministry, to obtain on her behalf an advance in the sum of US$ 90 000 from NSSA for the purchase of a Toyota Land Cruiser, registration number ADX 0878 knowing full well that NSSA had no provision to avail such loans. It is alleged that thereafter the appellant received an official vehicle Range Rover from the Government which she accepted in the knowledge that she had already obtained another ministerial vehicle.<br /> In the second count it is alleged that sometime in 2016 and on diverse occasions, using her position as Minister, the appellant unlawfully and corruptly directed the payment to herself sums of money totalling US$ 101 814.80 from NSSA’s corporate Social Responsibility Budget which money she received and used outside the mandate of NSSA.<br /> Regarding the third count, it is alleged that the appellant directed NSSA to set up a budget of US$ 350 000 for her ministry’s financial demands on top of the financial demands on the normal NSSA corporate social responsibility budget. It was alleged further that during that<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 3<br /> year the appellant claimed a total of US$ 313 520.03 for activities furthering her personal and political interests.<br /> In respect of the fourth count, the allegation was to the effect that sometime in 2014, the appellant abused her duty as a public officer by showing favour to Metbank when she instructed NSSA to financially bail out Metbank. This was against the advice of the NSSA risk management department which raised concerns over the bank’s financial vulnerability and its high risk default status. As a result, due to the appellant’s undue influence, NSSA ended up purchasing four Metbank properties at an inflated sum of US$ 4 908 750.<br /> As regards the 5th count, the allegation against her was that sometime in March 2017, the appellant criminally abused her public office by again showing favour to Metbank when she directed NSSA to consider an investment proposal from the bank for command agriculture. This was against NSSA’s risk management advice. It was alleged that Metbank intended to borrow US$ 13 000 000 from unrelated sources and requested NSSA to provide it with double cover security in the form of Treasury Bills. As a result of the appellant’s undue influence NSSA is said to have sent Treasury Bills valued at US$ 62 250 000 to Metbank on custodial arrangement but Metbank ended up using Treasury Bills valued at US$ 37 035 000 under unclear circumstances and which are currently unaccounted for, to the prejudice of NSSA.<br /> In the 6th count the appellant is alleged to have abused her duty as a public official by directing one Kurauone Chiota, the then NSSA Chief Property Investment Officer, into engaging NSSA in low cost housing projects with Metbank within 48hours. As a consequence of<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 4<br /> that directive, NSSA is alleged to have entered into off-take housing projects for St Ives and State land in Chinhoyi with Metro Realty, an entity related to Metbank, without carrying out due diligence as is the norm. The projects are valued at US$ 6 145 000 and $ 4 710 000 respectively.<br /> In the 7th count it is alleged that sometime in August 2017, the appellant corruptly used her position by directing NSSA to enter into a contract with Drawcard (Pvt) Ltd for a $ 6 500 000 housing project in Munyeza, Gweru without going to tender and without a board resolution, to the prejudice of NSSA.<br /> She appeared for initial remand on 26 July 2019, before the Acting Chief Magistrate. Counsel for the State then applied for the appellant to be remanded in custody for 21 days. He produced a certificate issued by the Prosecutor General in terms of s 32(3b) of the Criminal Procedure and Evidence Act [Chapter 9:07].<br /> In response, the appellant raised an objection to the production of the certificate. It was contended on her behalf that s 32(3b) had been rendered dysfunctional because of the provisions of s 50 (1) of the Constitution, 2013 which made bail a Constitutional right for every accused person which right could not be taken away on the basis of a mere opinion from the Prosecutor General. Thereafter, counsel for the appellant, proceeded to attack the charges count by count thereby submitting that there was no reasonable suspicion that the appellant had committed any of the alleged offences. Counsel for the appellant then moved for a hearing of a bail application.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 5<br /> The Acting Chief Magistrate held that he was satisfied that there was a reasonable suspicion that the appellant had committed the offences with which she was being charged. He concluded that all the requirements necessary for the production of the certificate in terms of s 32 had been met and he accordingly accepted its production. He then invoked s 32(3c) and held that the effect of the production of the certificate was to oust the court’s jurisdiction in determining issues related an accused person’s admission to bail during the lifespan of the certificate. In the result, he refused to entertain the appellant’s bail application. He thereafter ordered that the appellant be detained for 21 days.<br /> This is the determination that is the genesis to the appeal before the court a quo.<br /> THE APPEAL TO THE HIGH COURT<br /> On the 31 July 2019, the appellant approached the High Court. She filed a bail statement in terms of r 6 of the High Court of Zimbabwe Bail Rules S.I 109/91. RULE 6 provides as follows:<br /> (1) An appeal in terms of section 111 of the Criminal Procedure and Evidence Act [Chapter 9:07] by a person aggrieved by the decision of a magistrate on an application relating to bail or the entering by him into recognizances, shall be noted by filing with the registrar a written statement setting out—<br /> (a) the name of the appellant; and<br /> (b) the appellant’s residential address; and<br /> (c) if the appellant is employed, his employer’s name and address and the nature of his employment; and<br /> (d) where the appeal is brought against the decision of a magistrate before the appellant has been convicted—<br /> (i) the offence with which the appellant is charged; and<br /> (ii) the court by which and the date on which the appellant was last remanded; and<br /> (iii) the court criminal record book number, if that number is known to the applicant; and<br /> (iv) the police criminal record number of the case, the name of the police officer in charge of investigating the case and the police station at which he is stationed, if those particulars are known to the applicant; and<br /> (e) where the appeal is brought against the decision of a magistrate after the appellant has been convicted and sentenced—<br /> (i) the offence of which the appellant was convicted and the sentence that was imposed; and<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 6<br /> (ii) the court or courts which convicted the appellant and imposed sentence upon him; and<br /> (iii) the court criminal record book number, if the number is known to the applicant; and<br /> (iv) the date or dates on which the applicant was convicted and sentenced;<br /> (f) where the appeal is brought against a refusal by a magistrate to grant bail—<br /> (i) the grounds on which it was refused, if the grounds are known to the appellant; and<br /> (ii) the date on which it was refused; and<br /> (g) where the appeal is brought in relation to any recognizance or condition thereof—<br /> (i) the terms of the recognizance or condition concerned; and<br /> (ii) the date on which the magistrate required the recognizance to be entered into or imposed the condition, as the case may be; and<br /> (h) the grounds on which the applicant seeks release on bail or the revocation or alteration of the recognizance or condition, as the case may be.<br /> However, on close scrutiny it becomes evident that the appellant sought reliance on ss 116 and 117 of the Act, which sections apply to initial applications for bail. The relevant section of the Act, s 121 was not applicable for reasons that will be discussed later during the course of this judgment. In my view, the appeal filed by the appellant to the High Court having been made in terms of ss 116 and 117 was irregular. Those sections are relevant to initial applications for bail before a court of first instance, which in this case the High Court was not, nor was it the contention by the appellant that it was. Section 117 provides in relevant part as follows:<br /> 117A Application for bail, bail proceedings and record thereof<br /> (1) Subject to the proviso to section 116, an accused person may at any time apply verbally or in writing to<br /> the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate.<br /> (2) Every written application for bail shall be made in such form as may be prescribed in rules of court.<br /> (3) Every application in terms of subsection (2) shall be disposed of without undue delay.<br /> (4) In bail proceedings the court may—<br /> (a) postpone such proceedings;<br /> (b) subject to subsection (5), receive—<br /> (i) evidence on oath, including hearsay evidence;<br /> (ii) affidavits and written reports which may be tendered by the prosecutor, the accused or his or<br /> her legal representative;<br /> (iii) written statements made by the prosecutor, the accused or his or her legal representative;<br /> (iv) statements not on oath made by the accused;<br /> (c) require the prosecutor or the accused to adduce evidence;<br /> (d) require the prosecutor to place on record the reasons for not opposing bail.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 7<br /> (5) In bail proceedings the accused is compelled to inform the court whether—<br /> (a) the accused has previously been convicted of any offence; and<br /> (b) there are any charges pending against him or her and whether he or she has been released on bail in<br /> respect of those charges.<br /> (6) Where the legal representative of an accused submits the information referred to in subsection (5) the accused<br /> shall be required by the court to declare whether he or she confirms such information.<br /> (7) The record of the bail proceedings excluding the information referred to in subsection (5), shall form part<br /> of the record of the trial of the accused following upon such bail proceedings:<br /> Provided that if the accused elects to testify during the course of the bail proceedings the court must inform<br /> him or her that anything he or she says may be used against him or her at his or her trial and such evidence becomes<br /> admissible in any subsequent proceedings.<br /> (8) Any accused who wilfully—<br /> (a) fails or refuses to comply with subsection (5); or<br /> (b) furnishes the court with false information required in terms of subsection (5);<br /> shall be guilty of an offence and liable to fine not exceeding level seven or to imprisonment for a period not<br /> exceeding two years or both.<br /> (9) The court may make the release of an accused subject to conditions which, in the court’s opinion, are in<br /> the interests of justice.<br /> (10) Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail<br /> proceedings, have access to any information, record or document relating to the offence in question, which is<br /> contained in, or forms part of, a police docket, including any information, record or document which is held by<br /> any police officer charged with the investigation in question, unless the Prosecutor-General otherwise directs:<br /> Provided that this subsection shall not be construed as denying an accused access to any information, record<br /> or document to which he or she may be entitled for the purposes of his or her trial.<br /> The appellant was not appearing before the High Court in proceedings under the Act. She appeared before the Acting Chief Magistrate on initial remand and it is to that court that an application under s 117 should have been made and determined. No such application was made or determined.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 8<br /> It becomes evident therefore that reliance on s 117 by the appellant for the determination of an appeal under r 6 was incorrect. The proceedings before the High Court were therefore irregular. Over and above this, it becomes pertinent to consider whether the appeal, notwithstanding its defective nature, was properly before the court a quo.<br /> WAS THE APPEAL PROPPERLY BEFORE THE COURT A QUO?<br /> In the bail statement filed by her in accordance with the requirements of r 6, the appellant stated that the magistrates’ court erred in refusing to hear her bail application. It was contended further that the appeal before the High Court was an appeal in the wider sense and that as a consequence the High Court was empowered to hear the application on the merits.<br /> In opposition, the respondent raised two points in limine. The first preliminary point raised by the State was to the effect that there was no proper appeal before the High Court. It was contended that r 6 under which the appellant had approached the court only related to a situation where bail had been refused or in relation to the recognizance relating to bail. The rule, it was submitted did not apply to situations where the magistrate had declined jurisdiction as was the case in the present.<br /> The second point raised was that the admission of the certificate by the magistrate pursuant to the provisions of s 32(3b) of the Criminal Procedure and Evidence Act ousted the jurisdiction of the court to admit an accused person to bail during the lifespan of the certificate and that as a consequence the High Court just like the Acting Chief Magistrate in the court a quo had no jurisdiction to entertain the bail application.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 9<br /> The court a quo dismissed both preliminary points and proceeded to hear the appellant on the merits of the bail application. Thereafter, the appellant went into the merits of the bail application and made submissions in support thereof and the bail conditions she proposed.<br /> The court a quo also determined the issue, whether or not s 32 (3b) and (3c) are not in conformity with the Constitution and it was held that they were not. The court a quo held that the Magistrates Court erred when it refused to determine the bail application and as such its consequent order for the 21 day detention of the appellant should be set aside.<br /> On the merits, the appellant stated that she had been travelling in and out of the country on state business notwithstanding these allegations being levelled against her. She offered RTGS 3 000 as bail deposit and to surrender title deeds for a property, her two passports, non-interference with witnesses as well as reporting to a local police station every once a week.<br /> The court a quo also heard evidence from the investigating officer as to the reasons by the State for opposing the grant of bail. He told the court that the appellant is a politician, member of parliament and Cabinet minister and that therefore she was a very powerful individual in society. The investigating officer further stated that she should be held in custody.<br /> The court a quo, held that the issue for determination in the present circumstances was whether the appellant was likely to abscond and avoid standing trial. In dealing with this question the court had regard to the fact that the appellant was well travelled and had a ten year visa to the United Kingdom. The court found that in light of the case that was building against her, it was highly likely that the appellant would abscond court. The court a quo took cognisance of<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 10<br /> the amount of money involved in the present case and held that there was a likelihood of absconding. In view of these factors taken cumulatively the court a quo dismissed the appeal.<br /> An appeal against the refusal of bail or the giving of recognizance is provided for under s 121 of the Act. That section provides:<br /> 121 Appeals against decisions regarding bail<br /> (1) Subject to this section, where a judge or magistrate has admitted or refused to admit a person to bail—<br /> (a) the Prosecutor-General or the public prosecutor, within forty-eight hours of the decision; or<br /> (b) the person concerned, at any time;<br /> may appeal against the admission to or refusal to bail or the amount fixed as bail or any conditions imposed in<br /> connection with bail.<br /> (2) An appeal in terms of subsection (1) against a decision of—<br /> (a) a judge of the High Court, shall be made to a judge of the Supreme Court;<br /> (b) a magistrate, shall be made to a judge of the High Court.<br /> (3) Where a judge or magistrate has admitted a person to bail, and an appeal is noted by the Prosecutor-<br /> General or public prosecutor under subsection (1), the decision to admit to bail remains in force unless, on the<br /> application of the Prosecutor-General or public prosecutor, the judge or magistrate is satisfied that there is a<br /> reasonable possibility that the interests of justice may be defeated by the release of the accused on bail before the decision on appeal, in which event the judge or magistrate may suspend his or her decision to admit the person to bail and order the continued detention of the person for a specified period or until the appeal is determined, whichever is the shorter period.<br /> (4) An appeal in terms of subsection (1) by the person admitted to bail or refused admission to bail shall not<br /> suspend the decision appealed against.<br /> (5) A judge who hears an appeal in terms of this section may make such order relating to bail or any condition<br /> in connection therewith as he considers should have been made by the judge or magistrate whose decision is<br /> the subject of the appeal.<br /> (8) There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High<br /> Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission or refusal of admission to bail of a person charged with any offence referred to in<br /> (a) paragraph 10 of the Third Schedule; or<br /> (b) the Ninth Schedule in respect of which the Prosecutor-General has issued a certificate referred to in subsection (3b) of section thirty-two; in which event subsections (3) to (7) shall apply to such appeal.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 11<br /> Of particular importance in this inquiry are the provisions of ss (1)(b) and (4) which make it clear that an appeal is against the refusal or the grant of bail. In this case, the magistrate before whom the appellant appeared on initial remand did not make a determination on the issue of bail. He did not refuse bail. Instead, he declined jurisdiction to hear the application based on the certificate produced in terms of s 32(3b). Thus, as submitted by the State there could not be an appeal before the High Court premised on s 121 of the Act because there was no decision to appeal against.<br /> It is settled law that an appeal must always be premised on the determination of the court a quo, it being a logical supposition that the grounds thereof would seek to impugn the decision being appealed against. Grounds of appeal ought not to be divorced from the decision appealed against, otherwise the appeal is deemed irregular.<br /> In casu, the determination of the Magistrate’s Court was centred specifically on the validity of the certificate of the Prosecutor General and its effect as to the jurisdictional limits to determine the question of bail. As a result, the appeal by the appellant to the High Court ought to have raised issues that were limited to the validity of that certificate and the refusal of jurisdiction consequent thereto. Clearly this was not the case with the appeal brought before the High Court as is evident from the appeal noted purportedly in terms of r 6 of the Bail Rules, which is applicable to the refusal of bail, or the challenge to recognizance set by a magistrate when affording an accused person bail.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 12<br /> The learned magistrate did not consider issues relating to bail. He made a specific finding that the certificate was valid and that during its lifetime the jurisdiction of a court to admit the appellant to bail was ousted by virtue of its acceptance. That judgment is extant and has not been set aside. Its effect in my view was to disable the High Court from hearing the application, for want of a better word, brought by the appellant in reaction to the determination by the magistrate.<br /> The next issue is the contention by the State that the High Court, like the magistrates court did not have jurisdiction once the certificate issued in terms of s 32(3b) was accepted by the magistrate under the section in question.<br /> The proceedings before the Magistrates Court arose when the State, sought to have the appellant placed on remand consequent to the charges of criminal abuse of office levelled against her in terms of s 174 (1) (a) of the Criminal Code. After presenting the charges the respondent produced a certificate from the Prosecutor General in terms of s 32 (3b) of the Criminal Procedure and Evidence Act. Thereafter the respondent applied that the appellant be remanded in custody for 21 days. The appellant opposed the production of the certificate to the court on the basis that s 32 (3b) was ultra vires s 50 (1) of the Constitution. The magistrate rejected the argument by the appellant and went on to say:<br /> “The court has no hesitation to find all the requirements necessary for the production of the Prosecutor General’s certificate produced in terms of s 32 (3b) have been met. The effect of the certificate is to oust this and every other court’s jurisdiction in determining issues relating to the accused person’s admission to bail during its life span. The court holds that the certificate is valid and effective. I therefore order the detention of the accused person as prayed for in the Prosecutor General’s certificate.”<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 13<br /> Based on this determination, the appellant launched an appeal to the High Court. It is the correctness of the appeal that must be explored.<br /> The Acting Chief Magistrate concluded that the production of the certificate has the effect of ousting the jurisdiction of the Courts in determining issues relating to the accused person’s admission to bail during its pendency. On the basis of that reasoning the High Court’s jurisdiction to determine the appellant’s matter was ousted. Consequently, everything that the High Court did would be contrary to the law and null. The provisions upon which the Acting Chief Magistrate relied and on which the State premised its preliminary challenge to the jurisdiction of the court a quo read as follows:<br /> (3b) Where the person arrested without warrant is charged with any offence referred to in the Ninth Schedule<br /> and there is produced to the judge or magistrate before whom the person is brought in terms of this section—<br /> (a) a certificate issued by or on behalf of the Prosecutor-General stating that, in the Prosecutor-General’s<br /> opinion<br /> (i) the offence in question involves significant prejudice or significant potential prejudice to the<br /> economy or other national interest of Zimbabwe; and<br /> (ii) the further detention of the person arrested for a period of up to twenty-one days is necessary for<br /> any one or more of the following reasonsA. the complexity of the case; or<br /> B. the difficulty of obtaining evidence relating to the offence in question; or<br /> C. the likelihood that the person arrested will conceal or destroy the evidence relating to the<br /> offence in question or interfere with the investigation of the offence or both;<br /> and<br /> (b) the following, where the arrest is made in the circumstances referred to in paragraph (b) of subsection<br /> (1) of section twenty-five—<br /> (i) proof that the arresting officer was an officer of or above the rank of assistant inspector at the<br /> time of the arrest, or that the arresting officer made the arrest with the prior leave of such an officer;<br /> and<br /> (ii) where the alleged offence was disclosed through an anonymous complaint, a copy of the complaint<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 14<br /> as recorded in accordance with subparagraph (ii) of the proviso to paragraph (b) of subsection<br /> (1) of section twenty-five;<br /> the judge or the magistrate shall, if satisfied that there is a reasonable suspicion that the person committed the<br /> offence, order that person’s detention or issue a warrant for his or her further detention for a period of twenty-one days or the lesser period specified in the certificate.<br /> (3c) A person referred to in subsection (3a) or (3b) shall, unless the charge or charges against him or her are<br /> earlier withdrawn, remain in detention for twenty-one days or the lesser period specified in a certificate mentioned in subsection (3b), as the case may be, from the date when an order or warrant for the person’s further detention was issued in terms of the relevant subsection, and no court shall admit such person to bail during that period.<br /> Provided that the arresting officer or other officer in authority over him or her shall, at intervals of not more<br /> than forty-eight hours beginning on the date when the order or warrant for the person’s further detention is issued, make a report to the Prosecutor-General on the progress of the investigations into the charge or charges against the person in detention, and if the Prosecutor-General is satisfied on the basis of any such report that the person’s detention is no longer justified, the Prosecutor-General may order the immediate and unconditional release of the detained person.<br /> If regard is heard to the above provisions, once the magistrate had accepted the certificate upon its production and, in accordance with the provisions of ss (3c) the only way the High Court would be clothed with jurisdiction to hear this matter would have been if the appeal was made properly, that is to say, if the appellant had appealed against the decision of the court to validate the Prosecutor-General’s certificate and give it full effect. Therefore the respondent’s second preliminary point also had merit and ought to have been upheld. The proper course to take for the appellant was to appeal against the decision to validate the Prosecutor General’s certificate and had a decision been made in its favour, it ought to have then prayed for the remittal of the matter to the court a quo for a determination on the merits which is the issue of whether or not the appellant should be granted bail. This would have been the correct procedure to adopt. The appellant chose not to follow this route and embarked upon an appeal not supported by law.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 15<br /> As matters stand, the High Court, in my view, went outside the purview of its jurisdictional mandate and determined a bail application that was never before the court a quo, dealing with a supposed appeal that lacked jurisdictional foundation. This renders the basic foundation upon which the appeal was noted shaky. It also affects the matter before me. If there was nothing before the court a quo, it follows that there is no appeal to be dealt on the merits before me.<br /> The preliminary points had merit, and before the court could entertain the appellant, the decision of the magistrate had to be dealt with properly on the substance.<br /> That being so, it then becomes evident that the appellant’s appeal suffered an incurable defect and should not have been entertained by the court a quo. The appeal was a nullity and it is a trite position of our law that nothing can stand on a nullity. See Mc Foy v United Africa Co. Ltd 1961 93) ALL ER 1169 (CPC). As such the court a quo ought to have upheld the preliminary point raised by the respondent in which it contended that the question of bail did not arise in the court a quo. The fact that it was raised in argument by the appellant does not necessarily mean that this was an aspect which informed the decision of the court a quo.<br /> THE DECLARATION BY THE COURT A QUO THAT S32(3B) WAS ULTRA VIRES S 50 OF THE CONSTITUTION<br /> For purposes of completeness, I must comment on the decision of the court a quo to declare s 32 (3b) and (3c) of the Criminal Procedure and Evidence Act unconstitutional. This was an issue that was not brought before the court a quo for determination. An attempt to seek a<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 16<br /> declaration as to the constitutionality of the provision through an application to amend a draft order which sought bail was abandoned. In the absence of a challenge as to its constitutional validity it was not open to the court a quo to declare a provision in a statute unconstitutional.<br /> As far as the law is concerned these provisions are not ultra vires the Constitution especially if regard is had to the provisions of s 50 (1) of the Constitution. It states as follows:<br /> “50 Rights of arrested and detained persons<br /> (1) Any person who is arrested—<br /> (a) must be informed at the time of arrest of the reason for the arrest;<br /> (b) must be permitted, without delay—<br /> (i) at the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and<br /> (ii) at their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;<br /> (c) must be treated humanely and with respect for their inherent dignity;<br /> (d) must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and<br /> (e) must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.” (my emphasis)<br /> It must be noted that the right to liberty is not an absolute right, therefore where there are “compelling” circumstances the Courts are at liberty to detain the accused person. A closer look at s 32 (3a) and (3b) would show that the Prosecutor General does not issue such a<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 17<br /> certificate in every situation but where the situation is one that satisfies the requirements under s 32 (3b). This is what would constitute “compelling” circumstances as stated under s 50 (1) (d) of the Constitution.<br /> Therefore, the reasoning behind the finding of the unconstitutionality of these provisions, is with respect irregular and without legal foundation. In point of fact a reading of s 117, which provides for the entitlement to bail puts paid to the assumption by the court a quo that the provisions in the Act regarding bail are unconstitutional. Section 117 provides in relevant part:<br /> 117 Entitlement to bail<br /> (1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled<br /> to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.<br /> (2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice<br /> where one or more of the following grounds are established—<br /> (a) where there is a likelihood that the accused, if he or she were released on bail, will—<br /> (i) endanger the safety of the public or any particular person or will commit an offence referred to<br /> in the First Schedule; or<br /> (ii) not stand his or her trial or appear to receive sentence; or<br /> (iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or<br /> (iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system,<br /> including the bail system; or<br /> (b) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the<br /> public order or undermine public peace or security.<br /> (3) In considering whether the ground referred to in—<br /> (a) subsection (2)(a)(i) has been established, the court shall, where applicable, take into account the following<br /> factors, namely—<br /> (i) the degree of violence towards others implicit in the charge against the accused;<br /> (ii) any threat of violence which the accused may have made to any person;<br /> (iii) the resentment the accused is alleged to harbour against any person;<br /> (iv) any disposition of the accused to commit offences referred to in the First Schedule, as evident<br /> from his or her past conduct;<br /> (v) any evidence that the accused previously committed an offence referred to in the First Schedule<br /> while released on bail;<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 18<br /> (vi) any other factor which in the opinion of the court should be taken into account;<br /> (b) subsection (2)(a)(ii) has been established, the court shall take into account—<br /> (i) the ties of the accused to the place of trial;<br /> (ii) the existence and location of assets held by the accused;<br /> (iii) the accused’s means of travel and his or her possession of or access to travel documents;<br /> (iv) the nature and gravity of the offence or the nature and gravity of the likely penalty therefor;<br /> (v) the strength of the case for the prosecution and the corresponding incentive of the accused to<br /> flee;<br /> (vi) the efficacy of the amount or nature of the bail and enforceability of any bail conditions;<br /> (vii) any other factor which in the opinion of the court should be taken into account;<br /> (c) subsection (2)(a)(iii) has been established, the court shall take into account—<br /> (i) whether the accused is familiar with any witness or the evidence;<br /> (ii) whether any witness has made a statement;<br /> (iii) whether the investigation is completed;<br /> (iv) the accused’s relationship with any witness and the extent to which the witness may be influenced<br /> by the accused;<br /> (v) the efficacy of the amount or nature of the bail and enforceability of any bail conditions;<br /> (vi) the ease with which any evidence can be concealed or destroyed;<br /> (vii) any other factor which in the opinion of the court should be taken into account;<br /> (d) subsection (2)(a)(iv) has been established, the court shall take into account—<br /> (i) whether the accused supplied false information at arrest or during bail proceedings;<br /> (ii) whether the accused is in custody on another charge or is released on licence in terms of the<br /> Prisons Act [Chapter 7:11];<br /> (iii) any previous failure by the accused to comply with bail conditions;<br /> (iv) any other factor which in the opinion of the court should be taken into account;<br /> (e) subsection (2)(b) has been established, the court shall, where applicable, take into account the following<br /> factors, namely—<br /> (i) whether the nature of the offence and the circumstances under which the offence was committed<br /> is likely to induce a sense of shock or outrage in the community where the offence was<br /> committed;<br /> (ii) whether the shock or outrage of the community where the offence was committed might lead to<br /> public disorder if the accused is released;<br /> (iii) whether the safety of the accused might be jeopardised by his or her release;<br /> (iv) whether the sense of peace and security among members of the public will be undermined or<br /> jeopardised by the release of the accused;<br /> (v) whether the release of the accused will undermine or jeopardise the public confidence in the<br /> criminal justice system;<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 19<br /> (vi) any other factor which in the opinion of the court should be taken into account.<br /> (4) In considering any question in subsection (2) the court shall decide the matter by weighing the interests of<br /> justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is<br /> likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following<br /> factors, namely—<br /> (a) the period for which the accused has already been in custody since his or her arrest;<br /> (b) the probable period of detention until the disposal or conclusion of the trial if the accused is not released<br /> on bail;<br /> (c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused<br /> with regard to such delay;<br /> (d) any impediment in the preparation of the accused’s defence or any delay in obtaining legal representation<br /> which may be brought about by the detention of the accused;<br /> (e) the state of health of the accused;<br /> (f) any other factor which in the opinion of the court should be taken into account.<br /> (5) Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty<br /> to weigh up the personal interests of the accused against the interests of justice as contemplated in subsection (4).<br /> (6) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in—<br /> (a) Part I of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing<br /> the matter shall order that the accused be detained in custody until he or she is dealt with in accordance<br /> with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence<br /> which satisfies the judge or magistrate that exceptional circumstances exist which in the interests of justice<br /> permit his or her release;<br /> (b) Part II of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing<br /> the matter shall order that the accused be detained in custody until he or she is dealt with in accordance<br /> with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence<br /> which satisfies the judge or magistrate that the interests of justice permit his or her release.<br /> (7) Where a person has applied for bail in respect of an offence referred to in the Third Schedule—<br /> (a) the Prosecutor-General; or<br /> (b) the Minister responsible for the administration of the Public Order and Security Act [Chapter 11:17], in<br /> respect of offence referred to in paragraph 6 of Part I of the Third Schedule;<br /> may issue a certificate stating that it is intended to charge the person with the offence.<br /> (8) If the Minister responsible for the administration of the Extradition Act [Chapter 9:08], certifies in writing<br /> that a person who has applied for bail has been extradited to Zimbabwe from a foreign country and that the<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 20<br /> Minister has given an undertaking to the government or other responsible authority of that country—<br /> (a) that the accused person will not be admitted to bail while he or she is in Zimbabwe, the judge or magistrate<br /> hearing the matter shall not admit the accused person to bail;<br /> (b) that the accused person will not be admitted to bail while he or she is in Zimbabwe except on certain<br /> conditions which the Minister shall specify in his or her certificate, the judge or magistrate hearing the<br /> matter shall not admit the accused person to bail except on those conditions:<br /> Provided that the judge or magistrate may fix further conditions, not inconsistent with the conditions<br /> specified by the Minister on the grant of bail to the accused person.<br /> (9) A document purporting to be a certificate issued by a Minister or the Prosecutor-General in terms of subsection (7) or (8) shall be admissible in any proceedings on its production by any person as prima facie evidence of its contents.<br /> As the question of the invalidity of S 32(3b) is not an issue for determination in this appeal, I do not intend to dwell on that aspect. I will confine my remarks to the obvious provision of an accused person’s entitlement to bail in s 117(1) unless there are compelling reasons for his detention in custody.<br /> It is worth noting that the section has made provision for almost every factor that a court should consider in the accused’s person favour in order to ensure that detention in custody may be ordered only where compelling reasons for such detention have been established by the State. That this provision accords with s 50(1) (d) of the Constitution is not in dispute.<br /> The last issue for discussion is the question of the validity of the certificate issued by the Prosecutor General and accepted by the Chief Magistrate under s 32(3b).<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 21<br /> WHETHER THE CERTIFICATE WAS CORRECTLY SET ASIDE BY THE COURT A QUO<br /> The appellant filed an appeal under r 6 of the High Court Bail rules. The appeal itself was defective as commented above. The determination by the Acting Chief Magistrate on the certificate by the Prosecutor General was not appealed against. The court a quo was invited and persuaded to set it aside on the basis of submissions made to it by appellant’s counsel premised on the alleged constitutional invalidity of s 32(3b) of the Act. I have already found that those remarks by the court a quo have no legal justification.<br /> In my view, as a result of these comments the court a quo proceeded to set aside the certificate in the absence of an appeal against the decision of the magistrates’ court to accept or a challenge properly mounted to have it set aside. It was never placed before the court a quo by the appellant as an issue for determination justifying its setting aside. It was merely discussed as an issue for consideration during the purported bail hearing. In my view, the court a quo was not properly seized with this matter and the decision to set aside was a gross irregularity.<br /> There was no legal premise before the court a quo to interfere with the certificate. Its acceptance by the Acting Chief Magistrate was an exercise of his discretion in terms of the Act which exercise was never challenged. The decision by the court a quo to set the certificate aside without interfering with the Acting Chief Magistrate’s decision is an irregularity.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 22<br /> In circumstances such as these, the Supreme Court or a judge of the Supreme court would be called upon to invoke review powers in terms of s 25 of the Supreme Court Act [Chapter 7:13]. In my view, this is a proper case for the invocation of this provision. It is couched as follows:<br /> “25 Review powers<br /> 1. Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.<br /> 2. The power, jurisdiction and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.<br /> 3. Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”<br /> It admits of no doubt therefore, that in terms of s 25(2) of Supreme Court Act a judge of the court is imbued with powers to set aside proceedings that are irregular even if those proceedings are not the subject of an appeal or application before the Court or the judge. I am<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 23<br /> fortified in this view by the remarks of ZIYAMBI JA in The Chairman Zimbabwe Electoral Commission &amp; 2 Ors v Roy Bennet &amp; Anor SC 48/05. The learned Judge of Appeal said:<br /> “Section 25(2) confers additional jurisdiction which may be exercised when it comes to the notice of the Supreme Court or a judge of that court that an irregularity has occurred in proceedings not before it on appeal or application. Thus s 25(2) deals with irregularities in respect of which no appeal or application is before the Supreme Court and the review is undertaken at the instance of the Supreme Court and not of any litigant.”<br /> In Zimasco v Marikano SC 6/14, GARWE JA made remarks that are apposite and pertinent to this principle at p 8 of the cyclostyled judgment to the following effect:<br /> “In other words the Supreme Court has the power of review over matters coming before it for adjudication by way of appeal or whenever it comes to the notice of the court that an irregularity has occurred in any proceedings or in the making of a decision and it is felt that such an irregularity should not be allowed to stand.”<br /> In P.G Industries v Bvekerwa SC 53/2016 this Court held that due to the irregularity in the proceedings in the court a quo, the appeal could not be decided on the merits. In that case the Judge of the Labour Court had failed to provide reasons for his judgement. This Court went on to say that the absence of reasons made the task of the court even more difficult as the reasons for the decision by the court a quo remained locked in the mind of the judicial officer.<br /> In view of all the defects and irregularities set out above the only course open to me is to set the proceedings of the High Court aside. This includes the decision of the court a quo setting aside the certificate issued by the Prosecutor General resulting in its revival. The effect of the setting aside of the decision of the court a quo in this respect is the reinstatement of the certificate.<br /> Judgment No. SC 71/19<br /> Civil Appeal No. SC 482/19<br /> 24<br /> Counsel for the appellant was alive to the defective nature of the proceedings before the High Court. He indicated that he would withdraw the appeal. In my view that is a proper attitude to adopt as the appeal would have no merit.<br /> Accordingly, it is ordered as follows:<br /> 1. The appeal is dismissed.<br /> 2. In the exercise of my review powers under s 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings of the High Court brought by the appellant under Case No HREP 10641/19 be and are hereby set aside.<br /> 3. For the avoidance of doubt, the decision by the High Court to set aside the certificate issued by the Prosecutor General and produced to the Acting Chief Magistrate on 26 July 2019 is hereby set aside in accordance with the provisions of s 25(2) of the Supreme Court Act.<br /> Chinyama and Partners, legal practitioners for the appellant<br /> The Prosecutor General, for the State</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/71/2019-zwsc-71.pdf" type="application/pdf; length=467295">2019-zwsc-71.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail-0">Bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-1">appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grounds-refusal-bail">grounds for refusal of bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/liberty">Liberty</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 09 Sep 2019 10:47:31 +0000 Sandra 9400 at https://old.zimlii.org