Review https://old.zimlii.org/taxonomy/term/9464/all en Bere v JSC & 7 Ors (HH 510-20, HC 2302/20) [2020] ZWHHC 510 (04 August 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/510 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>FRANCIS BERE</p> <p>versus</p> <p>JUDICIAL SERVICE COMMISSION</p> <p>and</p> <p>SIMBI VEKE MUBAKO</p> <p>and</p> <p>REKAYI MAPHOSA</p> <p>and</p> <p>TAKAWIRA NZOMBE</p> <p>and</p> <p>VIRGINIA MABHIZA</p> <p>and</p> <p>THE PRESIDENT OF ZIMBABWE</p> <p>and</p> <p>MINISTER OF JUSTICE, LEGAL &amp;</p> <p>PARLIAMENTARY AFFAIRS</p> <p>and</p> <p>ATTORNEY GENERAL OF ZIMBABWE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIKOWERO J</p> <p>HARARE, 28 July 2020 and 4 August 2020</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p><em>L Uriri </em>with L Madhuku, for the applicant</p> <p><em>A B C Chinake, </em>for the 1st respondent</p> <p><em>M Chimombe, </em>for the 2nd -8th respondents</p> <p> </p> <p> </p> <p>            CHIKOWERO J: This is an application for review of the Judicial Service Commission’s decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.</p> <p>            The applicant is a judge of the Supreme Court and the Constitutional Courts of the Republic of Zimbabwe. The first respondent (JSC) is a corporate body established in terms of the s 189 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013. The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office. Fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Coordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal. The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.</p> <p>            As an administrative authority the JSC has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, s 3(1)(a) of the Administrative Justice Act [<em>Chapter 10:23</em>] (AJA) enjoins the JSC to act lawfully, reasonably and in a fair manner.</p> <p>            On 13 December 2019 the JSC held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.  </p> <p>            As his obligation in terms of s 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated the members are second –fourth respondents, with fifth respondent as its Secretary. In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020 the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary and set out the Tribunal’s terms of reference. </p> <p>            The applicant is aggrieved by the JSC’s decision to advise the President that the question of removing the former from the office of a judge ought to be investigated. Acting in terms of s 4(1) of the AJA the applicant has applied to this court, on review, to set aside the JSC’s decision on the basis that it failed to act lawfully, reasonably and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the JSC in coming up with that decision. He also seeks certain consequential relief.</p> <p>            I pause to set out the Tribunal’s terms of reference. They are:</p> <p>            “(i)       to investigate into the matter of the removal from office of Honourable Justice Francis</p> <p>Bere JA;  </p> <p> </p> <p>(ii)        to investigate into the matter of Honourable Justice Bere’s conduct, whether it can be deemed to have been tantamount to gross misconduct;</p> <p> </p> <p> (iii)      to investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;</p> <p> </p> <p>(iv)       to investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;</p> <p> </p> <p>(v)        to consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;</p> <p> </p> <p>(vi)       to recommend to the President whether or not the Honourable Judge should be removed from office in terms of s 187 of the Constitution and</p> <p> </p> <p>(vii)      to report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”</p> <p> </p> <p>The grounds on which the application for review is based are:</p> <p>“1.       the absence of any of the three jurisdictional grounds for the removal of Judge prescribed under s 187 (1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;</p> <p> </p> <p>2.         the absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or <em>quid pro quo</em> to confirm the nature and gravity of the case;</p> <p> </p> <p>3.         an objection to the appointment of the Permanent Secretary as secretary of the Tribunal on the grounds and basis that she was an actor in the process leading to the applicant’s suspension and the establishment of the Tribunal, something which gives credence to the applicant’s contention that the decision to refer his matter to the President was completely unreasonable;</p> <p> </p> <p>4.         There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;  </p> <p> </p> <p>5.         Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the <em>audi alteram partem</em> rule;</p> <p>6.         The JSC having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019 and having communicated this to the applicant could not revisit he matter subsequently as it had become <em>functus officio</em>;</p> <p>7.         The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;</p> <p> </p> <p>8.         To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency,”</p> <p> </p> <p>For the purposes of this application the issue of the investigation on the question of the</p> <p>removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions. Since I am required to determine this application on procedural grounds it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon’s complaint.</p> <p>            All the respondents opposed the application. At the commencement of the hearing, and with the consent of the legal practitioners for the applicant and the AG, I made an order for the removal of the AG from these proceedings. Further, the second, third, fourth and seventh respondents submitted that they had no interest in the outcome of the application. But they did not seek an order of costs against the applicant. Counsel for the President submitted that the latter simply fulfilled his constitutional obligation by appointing a tribunal upon receipt of the JSC’s advice. He too sought no order of costs against the applicant. Similarly, the Permanent Secretary submitted that she was appointed as Secretary to the tribunal by the President and as Coordinator of the Special Anti-Corruption Unit in the office of the President, she had simply referred Mr Moxon’s complaint to the JSC, through its Secretary, for attention. She had also made mention, in her referral letter, of the fact that, to use her words, applicant had also been implicated by Mr Ndudzo. She had played no further part in the investigations that ensued. She too did not pray that applicant be mulcted in costs.</p> <p>            In submissions, the JSC did not persist in its quest for punitive costs to be granted against the applicant. It was content with costs on the ordinary scale. But the applicant sought costs on the higher scale against all such respondents as opposed the application.</p> <p>            The JSC raised a number of preliminary points. Applicant raised one point <em>in limine</em>. I deal with the latter first.</p> <p>IS THE 1ST RESPONDENT BEFORE THE COURT?</p> <p>            Messrs <em>Uriri </em>and <em>Madhuku </em>submitted that the Acting Secretary of the JSC, Mr Chikwanha, had no authority to represent the JSC in this matter. It is Mr Chikwanha who deposed to the JSC’s opposing affidavit. I was urged to follow this court’s decision in <em>Francis Bere</em> v <em>Judicial Service Commission and 7 Ors</em> HH269/20. In that matter the court found that since it is the Judicial Service Commission which has the constitutional duty to advise the President that the question of removal of a Judge from office had arisen it could not delegate the function of defending that decision in a court of law to its Acting Secretary, who is not a member of the JSC. That decision is under appeal on that point. I was also referred to the following decisions for the argument that where a specific constitutional duty is imposed on a constitutional body, that duty cannot be delegated: <em>President of the Republic of South Africa</em> v <em>South African Rugby Football Union</em> 2000 (1) SA 1 (CC); <em>Paradza</em> v <em>Chirwa</em> 2005 (2) ZLR 94 (S). Mr <em>Madhuku </em>argued that the making of the constitutional decision to advise the President and defending that decision in a court of law constitute one act and can therefore not be delegated. Reference was also made to <em>CE Dube</em> v <em>PSMAS and Another</em> SC 73/19 for the submission that in persisting with representation through its Acting Secretary the JSC was not properly before me. The sum total of these arguments was to persuade me to find that the opposing affidavit deposed to by Mr Chikwanha and filed together with the Notice of opposition was invalid. There was therefore no opposition by the JSC.</p> <p>            Mr <em>Chinake </em>argued as follows. First, there stood on record a resolution by the JSC wherein it resolved to clothe the Acting Secretary with authority to sign documents on behalf of the JSC in litigation matters. Second, s 10 (2) of the Judicial Service Act [<em>Chapter 7:18</em>] gives the Acting Secretary of the JSC the authority to carry out any function on behalf of the JSC as long as he has been so directed by it.</p> <p>            My view is that as long as there is evidence to satisfy the court that it is the JSC which is litigating and not some unauthorised person acting in its name, the JSC is properly before me. See <em>Total Zimbabwe (Pvt) Ltd </em>v <em>Power Coach Express (Pvt) Ltd</em> 2010 (2) ZLR (H). I have such evidence in the form of the resolution of the JSC. I am satisfied that Mr Chikwanha, who sits in the meetings of the JSC to take the minutes of the meetings and is knowledgeable of what he deposes to, is not on a frolic of his own. I take the view that the ratio <em>decidendi </em>in <em>Paradza</em> v <em>Chirwa N.O and Others</em> 9supra) actually supports the JSC’s position. In deposing to the opposing affidavit, JSC is acting through its Acting Secretary whom it duly authorised to do so. I find it absurd that the resolution would hold good for the Acting Secretary (the Chief Accounting Officer) to sign ordinary litigation papers for the JSC but not litigation papers where the JSC’s decisions made in terms of the constitution are being defended in court. The resolution does not make that distinction. It is wide enough to cover all litigation papers. Further, the Judicial Service Act, which draws its life from the Constitution gives the Acting Secretary the authority to discharge functions where the JSC directs him to do so. I am unable to agree that advising the President as was done in this matter is the same act as deposing to an affidavit defending that decision in a court of law. I dismiss this point <em>in limine.</em></p> <p>ARE THE ISSUES FOR DETERMINATION IN THIS SUIT LIS <em>ALIBI PENDENS</em> UNDER HC 2162/20?</p> <p>            In HC 2162/20 the applicant sought the same relief as in the present matter. That matter was an urgent chamber application. The court found that HC 2162/20 was not urgent. It removed the matter from the roll of urgent matters. The matter was neither prosecuted thereafter nor was it withdrawn. The applicant simply abandoned the matter and instituted the same matter, this time as the present court application. I have looked at <em>Madza</em> v <em>The Reformed Church in Zimbabwe Daisyfield Trust and Others </em>SC 71/04; <em>Tomana</em> v <em>Judicial Service Commission and Another</em> HH 366/16. It is clear that HC 2162/20 is not on the opposed roll. Applicant has not placed it on that roll. He has simply abandoned it by dint of not prosecuting it after it was removed from the roll of urgent matters and filing as well as prosecuting the present suit. HC 2162/20 is pending. But that is academic. <em>Lis alibi pendens</em> is not an absolute bar to hear the present matter and render a decision thereon. I will not dismiss this application on the basis of this preliminary point. It was raised by the JSC. It does not dispose of the matter before me.</p> <p>THE MERITS</p> <p>NO QUORUM AT THE JSC MEETING OF 13 DECEMBER 2019</p> <p>            It was at this meeting of the JSC that the decision was taken to advise the President that the question of the removal of the applicant from the office of a judge ought to be investigated.</p> <p>            The parties are agreed that the membership of the JSC is 13, but there was a single vacancy at the material time. The parties are agreed that the Constitution allows the JSC to function all the same provided it has a quorum. Its quorum is 7, being half of the membership of the JSC.</p> <p>            Applicant made a bare allegation that only 6 members were present at the 13 December 2019 meeting. He does not mention the names of the members who were present and of those who were not in attendance. He does not attach any supporting affidavits from either those present or those whom he alleges were absent. He does not attach a copy of  the minutes of the meeting of 13 December 2019.</p> <p>            It is trite that an application stands or falls on the averments made in the founding affidavit. See <em>Muchini</em> v <em>Elizabeth Mary Adams &amp; Others</em> 2013 (1) ZLR 67 (S).</p> <p>            It also is trite that he who alleges must prove. See <em>ZUPCO</em> v <em>Parkhorse Services (Pvt)</em> <em>Ltd</em> SC 13/17; <em>Circle Tracking</em> v <em>Mahachi</em> SC 04/17.</p> <p>            Mr <em>Uriri </em>conceded that all that applicant has done is to allege that there was no quorum. He argues that on the basis of the importance of the matter that bare allegation must shift the onus to the JSC to prove that there was a quorum.</p> <p>            It is clear that applicant relies on rumours for his allegation that there was no quorum. Matters are decided on the law, facts and the evidence and not rumours. The JSC says there was a quorum. It is not the applicant. It suffices that it challenges applicant to prove its allegation. The JSC has no obligation to assist the applicant to prove the latter’s allegation. I find that applicant has failed to substantiate its allegation that there was no quorum at the meeting of 13 December 2019.</p> <p>THE JSC WAS <em>FUNCTUS OFFICIO</em> AND COULD NOT REVERSE ITS 21 NOVEMBER 2019 DECISION</p> <p>            Applicant claims that the JSC held an ordinary meeting on 21 November 2019 where all the Commissioners concluded that there was nothing untoward about his conduct.</p> <p>            He alleges that he received a phone call from the Deputy Acting Secretary of the JSC, Mr Stembinkosi Msipa breaking the good news. This is denied by the JSC which avers that no such meeting was held and therefore that the decision alleged was never made.</p> <p>            Applicant neither produced the minutes of the alleged meeting of 21 November 2019 nor filed a supporting affidavit by the Deputy Acting Secretary.</p> <p>            I find that this allegation too was not substantiated.  There was therefore nothing for the JSC to reverse on 13 December 2019.</p> <p>VIOLATION OF THE <em>AUDI ALTERAM PARTEM</em> RULE</p> <p>            Applicant accepts that he received, through the JSC, correspondence from Mr Moxon, Mr Ndudzo and the Permanent Secretary. He admits that he responded to these letters. I agree that his responses are detailed. His last response of 20 August 2019 relating to Mr Ndudzo’s letter runs into 5 pages.</p> <p>            Thereafter, the JSC asked Mr Ndudzo to comment on applicant’s reply. The alleged non-observance of the right to be heard relates to his not being given yet another opportunity to comment on Mr Ndudzo’s comment before the JSC met on 13 December 2019. My view is that Mr Ndudzo’s comment post 20 August 2019 was not another stage in the preliminary investigation by the JSC but a step within that stage. It seems to me that the exchange of correspondence, through JSC, could not continue <em>ad infinitum</em>.  It had to end somewhere to pave way for the JSC to make a decision. Despite complaining that the contents of Mr Ndudzo’s last letter were so material that he ought to have been given an opportunity to respond thereto applicant says in the same breath that whatever was referred to the President based on the Ndudzo matter, was petty. I therefore find that there was no breach of the <em>audi alteram partem</em> rule because applicant is effectively saying Mr Ndudzo’s last letter to the JSC changed nothing.</p> <p>With reference to the Moxon complaint, applicant accepted that the matter had not been concluded by the advice to the Chief Justice from the Judicial Ethics Advisory Committee and the Chief Justice’s correspondence to Mr Moxon and the applicant communicating that advice. I say so because applicant wrote to the Chief Justice stating that the former could not stand in Mr Moxon’s way should Mr Moxon want to pursue the matter further. Indeed, Mr Moxon did so and the matter ended up before the JSC at its meeting of 13 December 2019 where a decision was taken to advise the President.</p> <p>ABSENCE OF JURISDICTIONAL FACTS TO GROUND THE JSC’S DECISION TO ADVISE THE PRESIDENT</p> <p>            An exhaustive analysis of this ground is tantamount to this court substituting its views for the <em>prima facie</em> views of the JSC, already acted upon on 13 December 2019. I do not think that it is proper for this court to do so. I observe only that on the face of it the correspondence put before me reveals that the JSC must have concluded that the applicant’s conduct needed to be investigated by a tribunal. I am not sitting as an appeal court to determine the correctness of the JSC’s decision but on review to decide whether any of the jurisdictional grounds for removal of a Judge from office is disclosed on the papers put before me and on which the decision to advise the President was made. Section 187 (1)(c) of the Constitution provides that gross misconduct is one such jurisdictional ground. Whether there was gross misconduct is not for me to determine. The Tribunal’s terms of reference cover that aspect.</p> <p>            By the same token, this court cannot make pronouncements on the merits or otherwise of an investigation which the tribunal is constitutionally empowered to do. The court is not the Tribunal.</p> <p>            I do not think it necessary for applicant to effectively be a judge in his own cause by submitting, before this court, that the basis upon which the JSC advised the President was petty. That goes to the substance of that which the tribunal is to investigate, make findings and recommend on. I have already found that it would be remiss of me to rule on the correctness of the JSC’s decision to advise the President.</p> <p>            Given the importance of this matter I may have hesitated to award costs against the applicant had he not instituted this application but instead prosecuted the urgent chamber application which was removed from the roll, as a court application. Applicant has caused the first respondent to incur unnecessary costs by duplicating proceedings.</p> <p>            In the circumstances I have no reason to depart from the general rule that success carries costs.</p> <p>ORDER</p> <p>            In the result, the following order shall issue:</p> <ol> <li>The application be and is dismissed.</li> <li>The applicant shall pay the 1st respondent’s costs.</li> </ol> <p> </p> <p><em>Dube, Manikai &amp; Hwacha</em>, applicant’s legal practitioners</p> <p><em>Kantor &amp; Immerman</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office,</em> 2nd – 7th respondents’ legal practitioners     </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/2020/510/2020-zwhhc-510.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27512">2020-zwhhc-510.docx</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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-authority">Administrative authority</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/functus-officio">Functus officio</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule-0">audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/decision-statutory-authority">decision of statutory authority</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</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/2014/71">Madza &amp; Others v Reformed Church in Zimbabwe &amp; Others (SC 315/13) [2014] ZWSC 71 (28 September 2014);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2016/366">Tomana v JSC &amp; Another (HH 366-16 HC 1913/16) [2016] ZWHHC 366 (15 June 2016);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/47">Muchini v Adams &amp; Others (Civil Appeal No SC 257/11) [2013] ZWSC 47 (11 February 2013);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2007/4">Circle Tracking v Mahachi (61/05) ((61/05)) [2007] ZWSC 4 (21 March 2007);</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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Wed, 12 Aug 2020 14:08:52 +0000 Sandra 9822 at https://old.zimlii.org Vela v The Auditor General of Zimbabwe N.O & Anor (HH 405-20, HC 6503/19) [2020] ZWHHC 405 (17 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/405 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                                                                                                                                                                               ROBIN VELA</p> <p>versus</p> <p> </p> <p>THE AUDITOR GENERAL OF ZIMBABWE N.O.</p> <p>and</p> <p> </p> <p>BDO ZIMBABWE CHARTERED ACCOUNTANTS</p> <p><em>(a firm of chartered accountants whose partners are Ngoni Kudenga,</em></p> <p><em>Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)</em></p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHINAMORA J</p> <p>HARARE, 18 March 2020 &amp; 17 June 2020</p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p><em>Adv T Mpofu</em> <em>with</em> <em>Mr A Rubaya</em>, for the applicant</p> <p><em>Mrs F Chimbaru, </em>for the first respondent</p> <p><em>Mr J R Tsivama</em>, for the second respondent</p> <p> </p> <p> </p> <p>CHINAMORA J: <strong>Introduction</strong>: This is an application brought in terms of s3 (1) (a) as read with s4 of the Administrative Justice Act <em>[Chapter 10:28] </em>(“the AJA”); as read with ss26 and 27 of the High Court Act <em>[Chapter 7:06], </em>together with the common law. The applicant alleges infringement of his fundamental right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair as enshrined in s 68 (1) of the Constitution. The applicant seeks before this court relief sought set out as follows:</p> <p> </p> <p>“IT IS ORDERED THAT:</p> <p> </p> <ol> <li>The forensic audit of the National Social Security Authority [“NSSA”] for the period 1 January 2015 to 28 February 2018 produced on behalf of the Auditor General of Zimbabwe by BDO Chartered Accountants be reviewed and set aside in all those respects that pertain, whether directly and/or indirectly to the applicant.</li> </ol> <p> </p> <ol> <li>Costs of suit shall be borne by the second respondent on the higher sale of legal practitioner and own client”</li> </ol> <p> </p> <p>The first and second respondents opposed the application. A brief chronology of the events culminating in the present application is provided by way of background.</p> <p> </p> <p><strong>Background                                                                                                                                                                                                                                                                                                                                                                                                                                      </strong></p> <p>The facts of the matter are discernible from the affidavits filed by the parties. Where matters are contentious, I have set them out under separate headings. It is common cause, however, that the applicant was board chairman of NSSA from 12 July 2015 to 27 March 2018. When he left, the first respondent appointed the 2nd respondent to conduct a forensic audit of NSSA, which culminated in a report with findings/conclusions some of which relate to the applicant. The report was served on the applicant on 2 August 2019. Subsequently, he was given a questionnaire to which he gave some responses. The applicant advised that his responses to the questionnaire should be read together with the consents of a dossier dated 11 May 2018 and housing transaction supplement (and annexures) dated 16 July 2018, which he had prepared. I will now set out the respective submissions of the parties, beginning with the applicant’s case.</p> <p> </p> <p><strong>The applicant’s submissions</strong></p> <p>The applicant asserted that he was aggrieved by the adverse findings and conclusions relating to him that were made in auditor general’s report. In summary, he identifies the matters of concern as follows:</p> <p> </p> <ol> <li>Metbank investments were not above board and had yielded losses to NSSA.</li> <li>The off-take agreements were irregular and had resulted in losses to NSSA.</li> <li>The applicant caused agreements between NSSA and Housing Corporation of Zimbabwe (Private) Limited (HCZ) to be concluded, and they caused losses to NSSA.</li> <li>The conduct of interviews for people recruited into senior management was shrouded in mystery, with no accountability.</li> <li>Board fees were overpaid. The report recommended: <em>“NSSA should seek legal counsel on how to deal with the involvement of the former board chairman in the overpayment of board fees”.</em></li> <li>The applicant interfered in management issues.</li> </ol> <p> </p> <p><strong>The detailed grounds of challenge</strong></p> <p>Elaborating the basis of application, the applicant stated that he was unhappy with both the forensic audit’s processes and conclusions. The grounds which found the challenge to the report are detailed below:</p> <p> </p> <p><strong>Acting beyond remit of powers</strong></p> <p>The applicant asserted that the first respondent exceeded the powers given to her by s9 (2) as read with paragraph 10 of the Sixth Schedule to the Constitution, as read with s2 (1) of the Audit Office Act <em>[Chapter 22:18].</em> He stated the respondent’s constitutional function as being to audit accounts, financial systems and financial management of public accounts, and concluded that any audit beyond this remit was unlawful.</p> <p> </p> <p><strong>The report is not a forensic report</strong></p> <p>For the applicant, it was argued that public power cannot be exercised for a purpose other than that for which it has been given. Once the decision was made by the first respondent to conduct a forensic investigation, it was that investigation that had to be undertaken. The applicant submitted that, to the extent that none of the people who produced the report are qualified or accredited as forensic investigators, the report is invalid and could not be relied on by the first respondent.</p> <p> </p> <p><strong>The report is incompetent</strong></p> <p>            The applicant averred that the report was incompetently prepared as it relied on wrong or speculative information. He cited the figure of US$4,968-00 used to show that board fees were unlawfully paid, yet there was an actual approved sum. Also disputed was the conclusion that board fees were not approved, because same were approved by the permanent secretary and implemented by NSSA’s management. In relation to the Africom issue, the applicant disputed the alleged loss to NSSA of $300,000-00, and said a profit restatement of $15,5m to NSSA was ignored.</p> <p>            He disagreed with the sum of $104 million given as potential loss to NSSA on the HCZ issue, as the auditors wrongly assumed that the completed houses would have no takers. He argued that, had he been given a right to be heard, he would have cleared any concerns and obviated reliance on the arbitrary figures. The applicant submitted that conclusions were reached on unjustified comparisons between the HCZ and NBS housing schemes without considering key significant differences. It was contended that a forensic report would have noticed this.</p> <p>            My attention was drawn to the judgment in <em>Housing Corporation of Zimbabwe (Pvt) Ltd v Zimnat Assurance Company (Pvt) Ltd </em>HH 579-18, delivered on 22 February 2019. The applicant averred that, the second respondent released the report disregarding that the judgment affects the conclusions in the report. In that case, NSSA had demanded that Zimnat pays it under the performance bond alleging breach by HCZ for failing to deliver housing units in terms of the off-take agreement. In response, HCZ sought an interdict against the payment on the basis that NSSA’s demand was fraudulent as it had delivered some housing units. The interim interdict was granted pending the outcome of arbitration proceedings. In due course, an award was made to HCZ.</p> <p>In light of the High Court judgment and subsequent arbitral award, the applicant contended that no basis, other than incompetence and malice, existed for the second respondent’s negative finding and conclusion. The applicant complained that the report was never updated to reflect the judgment and the award. In addition, he asserted that no evidence was shown of any meeting between him and HCZ representatives to substantiate the conclusion that he caused the agreements between NSSA and HCZ to be concluded.</p> <p>Contrary to the conclusion that HCZ was a week old company which had obtained a US$304 million contract without tender, the applicant argued that it was a subsidiary of Housing Africa Corporation (HAC). He added that HAC approached NSSA as early as February 2017, and that HAC incorporated HCZ as a special purpose vehicle for its housing projects in Zimbabwe.</p> <p> </p> <p><strong>Bias on the part of the auditors   </strong></p> <p>            The applicant averred that questions put to him via a questionnaire were framed in a biased way. When he provided answers, he submitted that no reasons were given in instances where the auditors disagreed with him. He argued that his responses were either ignored or his explanations not followed through. Additionally, the applicant stated that no attention was paid to 3 dossiers of information that he provided, without any reasons for ignoring them, He argued that the process was tainted and compromised and that his answers were not considered, and he surmised that this was because they did not tally with the auditors’ desired outcome. The applicant argued that the information he provided confirmed there was board approval for the projects allegedly not properly approved. He added that collective responsibility was taken by the board, as appears from supporting minutes and e-mail correspondence. If his explanations been taken into account, the applicant stated that they would have affected the conclusions arrived at in the report.</p> <p>He also highlighted the undesirability of Mr Kudenga’s continued involvement in the audit despite attacks on him by a member of parliament since he was owing the applicant money. The applicant argued that the allegation of bias or its likelihood made it imperative for Mr Kudenga to recuse himself from the audit process. The argument continued that everything he did beyond the point that he should have recused himself is invalid.</p> <p>            To demonstrate the second respondent’s double standards or discriminatory approach, the applicant referred the court to notable events which happened during the period covered by the audit. These are as follows: former minister, Ms Petronella Kagonye, against resolutions of NSSA and NBS boards, appointed one Lameck Danga as managing director of NBS, after coming second in the interviews. He pointed out that the report did not criticize Ms Kagonye for this. The second one relates to the permanent secretary, Mr Ngoni Masoka, who directed Mr Danga’s salary to be paid at a rate higher than that of his seniors in NSSA. Again, the applicant argued that the report did not condemn this. A third one involves an amount of US$598,000-00 ascribed to cost of “unfair dismissals” in the report. The applicant stated that the report omitted to mention that former minister, Mr Patrick Zhuwao, forced NSSA, against a board resolution, to pay a Mr Chikuni Mtiswa the sum of US$400,000-00. Next is the issue of Ms Petronella Kagonye who forced the termination of Mr David Makwara’s contract of employment as general manager of NSSA on the ground that he was too close to the applicant. He complained that the losses arising from these decisions were unjustifiably blamed on the applicant.</p> <p>The additional case involved Ms Petronella Kagonye forcing NSSA to sponsor a sum of US$200,000-00 to a disability conference in her Caledonia constituency, and another US$200,000-00 to a school in Ruwa before the 2018 elections. The applicant lamented that the auditors did not criticize the minster for the abuse of pensioners’ funds for “vote buying” for a private benefit. A final issue raised by the applicant is that the report unfairly criticized him for decisions taken before he joined NSSA. As further proof of bias, the protested that the report incorrectly ascribes to him loss of US$4 million in a debt swap deal involving Metbank’s property, and US$2 million through properties bought from Metbank at inflated prices before his appointment.</p> <p>The applicant argued that the second respondent was not an impartial auditor and drew the court’s attention to the agreement letter dated 15 May 2018 where the following appears:</p> <p> </p> <p>“We understand that the results of our work may be used in disciplinary hearings or criminal proceedings. If you wish to retain us as an expert witness in connection with this matter, those services will be billed separately based on the actual time spent at our standard hourly charge out rates”.    </p> <p> </p> <p>If the second respondent was a neutral auditor, the applicant wondered how it would give objective testimony in any subsequent proceedings arising out of the report.</p> <p> </p> <p><strong>Inaccurate and inconsistent report</strong></p> <p>            The applicant contended that the report is inaccurate to the extent that it alleges that some investments were made without board approval. He referred to a board resolution of September 2012 which authorized management to implement decisions of the Board Investment Committee. Additionally, he submitted that the report was inconsistent, particularly, with regard to the HCZ issue where it gave loss figures varying from US$16 million to US$104 million then to US$304 million. He argued that, at any rate, the amount of US$16 million paid by NSSA to HCZ was secured by a Zimnat insurance guarantee of US$16 million and a land bond of US$32 million.</p> <p>            The applicant stated that the board’s view was that offtake agreements did not require to go through a tender board, and a Mr Charles Nyika employed to ensure compliance with procurement regulations did not raise any alarm. He therefore argued that the suggestion that he pushed the projects without tender approval was malicious. The applicant also denied authorizing Metbank to utilize US$37.75 million of NSSA treasury bills in their custody, since the authority was granted in the name of the General Manager, Ms Liz Chitiga, but a letter in her name had been signed by her Executive Assistant, Mr James Chiuta. Even so, he submitted that the criticism was unwarranted since NSSA had the Reserve Bank of Zimbabwe clearance on the good standing of Metbank.</p> <p> </p> <p><strong>Conflict between the Auditor General and the Accountants </strong></p> <p>The applicant submitted that the auditors’ findings conflict with the first respondent’s earlier work. In this regard, the applicant contended that if a loss of US$104 million existed, it would have been flagged in the December 2018 results as a contingent liability and published in her annual report. The argument continues that, the second respondent’s figure is arbitrary and false.</p> <p> </p> <p><strong>The respondents’ submissions</strong></p> <p>The respondents raised some points <em>in limine</em>. The first is that the report was not a decision, but contained factual findings and, consequently, was not reviewable. Secondly, it was argued that the second respondent was not an administrative authority whose decision can be subject to judicial review. It was further argued that the grounds relied on by the applicant did not constitute grounds for review contemplated by s27 of the High Court Act. On its part, the second respondent submitted that the application did not comply with r257 insofar as the grounds of review were not stated in the application but in the founding affidavit. It further contended that no adverse action has been taken against the applicant on the basis of the report and, as such, the process leading to the issuance of the report is not reviewable.</p> <p>A further preliminary point raised was that there had been a material misjoinder of the second respondent as it was a private party which had been engaged by the first respondent. It denied exercising any public power and should not have been joined to the proceedings as it was a mere agent of the first respondent who was the principal. The second respondent argued that it was not covered by the definition of administrative authority in s2 (1) of the AJA, and urged the court to dismiss the application. Thus, the respondents urged the court to dismiss the application on those preliminary points.</p> <p>In respect of the merits, the first respondent submitted that it had no knowledge of the averments set out in the applicant’s detailed grounds of challenge. Regarding the attack on the forensic investigation process, the first respondent deferred to the second respondent <em>“as the party better placed to respond”. </em>She stated that the audit process was conducted lawfully and that no valid basis existed for setting aside the report. The first respondent asserted that it was NSSA which was being audited and not the applicant. Additionally, it contended that the applicant’s remedy lay in suing for damages for defamation if he perceived that the report unfairly cast him in bad light.</p> <p>The second respondent denied that there was anything irregular, unreasonable, incompetent, biased, malicious or unfair about the report. It maintained that it exercised its discretion reasonably when it dealt with information received from the applicant and others implicated in the audit. With respect to the contract of US$304 million, the second respondent argued that its magnitude required that it should have gone to tender. On the issue of board fees, the second respondent submitted that it had no reason to take into account an increase which had been improperly approved by the permanent secretary at the instance of the applicant.</p> <p>In conclusion, the second respondent urged the court to dismiss the application as it had carried out its mandate in terms of its brief from the first respondent, arguing that the report was factual and impartial.</p> <p> </p> <p><strong>Issues for determination</strong></p> <p>The issues that confront this court for determination are as follows:</p> <ol> <li>Whether, when the second respondent acted under the authority of the Auditor General, it exercised administrative or public power.</li> <li>Whether the forensic investigation constitutes reviewable action/conduct or decision.</li> <li>Whether grounds for review exist</li> </ol> <p> </p> <p><strong>The relevant law</strong></p> <p>It is not in doubt that in terms of s26 of the High Court Act, this court has power to review proceedings and decisions of inferior courts, tribunals and administrative authorities. The grounds upon which a review may be brought are set out in the High Court Act, in particular, s27 thereof which, in the relevant part, reads:</p> <p> </p> <p><strong>“27 Grounds for review </strong></p> <ol> <li>Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be –</li> </ol> <p> </p> <p>(a) absence of jurisdiction on the part of the court, tribunal or authority concerned;</p> <p>(b) interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;</p> <p>(c) gross irregularity in the proceedings or the decision.</p> <p>(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.”</p> <p> </p> <p>See <em>Ndlovu N.O. v CBZ Bank &amp; Anor</em> SC 27-17</p> <p> </p> <p>Essentially, the applicant’s complaint is that there were gross irregularities in the manner the forensic investigation was carried out by the first respondent acting through the auditors she had appointed. The appropriate place to begin is the Constitution which, through s68 (1), entitles everyone to just administrative action which is carried out in a lawful, reasonable and procedurally fair manner. The section, <em>inter alia</em>, provides:</p> <p> </p> <p><strong>“68 Right to administrative justice</strong></p> <p> </p> <p>(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.</p> <p>(2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct”.</p> <p> </p> <p>The constitutional right enshrined in s68 (1) has been mirrored and given effect in terms of the AJA. Thus, s3 (1) of the AJA provides that an administrative authority which takes action which may affect the rights, interests or legitimate expectations of any person shall act lawfully, reasonably and in a fair manner and give reasons for its action. Section 3 (2) merits quoting in <em>extenso</em>, as it states:</p> <p> </p> <p>“(2) In order for an administrative action to be taken in a fair manner as required by paragraph (<em>a</em>) of subsection (1), an administrative authority shall give a person referred to in subsection (1) –</p> <p> </p> <p>(<em>a</em>)  adequate notice of the nature and purpose of the proposed action; and</p> <p>(<em>b</em>)  a reasonable opportunity to make adequate representations; and</p> <p>(<em>c</em>)  adequate notice of any right of review or appeal where applicable”.</p> <p> </p> <p>In addition, section 4 of the AJA provides:</p> <p> </p> <p><strong>“4 Relief against administrative authorities</strong></p> <p> </p> <ol> <li>Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section <em>three </em>may apply to the High Court for relief.</li> </ol> <p> </p> <ol> <li>Upon an application being made to it in terms of subsection (1), the High Court may, as may be appropriate—</li> </ol> <p> </p> <p>(<em>a</em>) confirm or set aside the decision concerned;</p> <p>(<em>b</em>) refer the matter back to the administrative authority concerned for consideration or reconsideration;</p> <p>(<em>c</em>) direct the administrative authority to take administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;</p> <p>(<em>d</em>) direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;</p> <p>(<em>e</em>) give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section <em>three</em>.</p> <p> </p> <p>(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision”.</p> <p> </p> <p>It is not debatable that there is adequate authority for this court to deal with this application.</p> <p> </p> <p><strong>Analysis</strong></p> <p><strong>Whether BDO Accountants exercised administrative power</strong></p> <p>I identified the first issue for determination as whether, when the second respondent acted under the authority of the Auditor General, it exercised administrative or public power. In dealing with this application, I have to define the legal status of the second respondent vis-à-vis the audit process. It is only through doing so that the jurisdiction of this court is engaged. I am mindful of the point in <em>limine</em> challenging this court’s jurisdiction. The first respondent’s functions are set out in 309 (2) of the Constitution as follows:</p> <p> </p> <p>“2. The functions of the Auditor-General are--</p> <p>(a) to audit the accounts, financial systems and financial management of all departments, institutions and agencies of government, all provincial and metropolitan councils and all local authorities;</p> <p>(b) at the request of the Government, to carry out special audits of the accounts of any statutory body or government-controlled entity;</p> <p>(c) to order the taking of measures to rectify any defects in the management and safeguarding of public funds and public property; and</p> <p>(d) to exercise any other functions that may be conferred or imposed on him or her by or under an Act of Parliament”.</p> <p> </p> <p>As an agency government, NSSA is subject to audit by the first respondent. By virtue of s8 (1) of the Audit Office Act, the first respondent’s powers can be delegated. Section 9 permits the first respondent to carry out contracted audits, which are defined as follows:</p> <p>            “9 Contracted audits</p> <p>(1) The Comptroller and Auditor-General may, by notice in the Gazette, appoint a person registered as a public auditor in terms of the Public Accountants and Auditors Act [<em>Chapter 27:12</em>] to inspect, examine and audit the accounts, records or stores that are required by this Act or by any other enactment, to be inspected, examined or audited by the Comptroller and Auditor–General and report the results of the inspection, examination or audit.</p> <p>(2) The person appointed in terms of subsection (1) may carry out an economy, efficiency and effectiveness audit of the operations, or specified operations, of a designated statutory body, and report the results of the audit to the Comptroller and Auditor-General”.</p> <p> </p> <p>It is common cause that the second respondent was contracted to carry out an audit of NSSA under the statutory framework described above. In this regard, the AJA defines administrative authority to include:</p> <p> </p> <p>“(d) any other person or body authorized by any enactment to exercise or perform any administrative power or duty; and who has the lawful authority to carry out the administrative action concerned”.</p> <p> </p> <p>From the foregoing framework, I find it beyond argument that the second respondent performed a public function and made findings and recommendations in this regard. It follows that by carrying out the forensic audit, the second respondent fell squarely within the definition of administrative action contemplated by the AJA. It can hardly be open to dispute that the decision to recommend vested in the second respondent, while the decision to accept the recommendations lay with the first respondent. However, what is particularly relevant to the issue before me was articulated in Adv <em>Mpofu’s</em> submission that upon being adopted, ownership in the recommendations shifted to repose in the first respondent. Once that happened, it is naïve of the auditors or the Auditor General to deny that the second respondent effectively exercised administrative power. I dismiss the point <em>in limine</em> raised for lack of merit.</p> <p> </p> <p><strong>Whether the audit constitutes reviewable action/conduct or decision</strong></p> <p>The second issue was whether the audit constitutes reviewable action/conduct or decision. This question cannot be answered without looking at the architecture of s3 (1) and (2) of the AJA. Those provisions make it evident that the exercise of public power should not be arbitrary, but must conform to the principles of legality, fairness and reasonableness. I agree with Adv <em>Mpofu</em>’s submission that what is reviewable is not merely a decision of an administrative body, but administrative action. There are a number of cogent reasons which render it a woeful folly to conflate administrative action with administrative decision.</p> <p>Firstly, s2 (1) of the AJA is clear that the two concepts are different, and should be so treated, since it defines “administrative action” to mean any action taken or decision made by an administrative authority. Clearly, the use of the elective conjunction suggests that this court can review either an action or a decision of an administrative functionary. Secondly, it is instructive to consider the purpose of the AJA, whose preamble provides a clue to why action and decision should neither be confused nor be used interchangeably. It is in the following terms:</p> <p>“AN ACT to provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair; to provide for the entitlement to written reasons for administrative action or decisions; to provide for relief by a competent court against administrative action or decisions contrary to the provisions of this Act; and to provide for matters connected with or incidental to the foregoing”. <strong>[My own emphasis]</strong></p> <p>That this court can examine the purpose of legislation to aid statutory interpretation has judicial precedent. NCOBO J in <em>Bato Star </em><em>Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others</em> 2004 (4) SA 490 (CC) at para 89 eloquently stated the position thus:</p> <p> </p> <p>“… the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.” <strong>[My own emphasis]</strong></p> <p> </p> <p>Thirdly, s68 (1) of the Constitution, though using the word “conduct”, confirms that action is different from, and was not intended to mean decision. It provides that every person has a right to lawful, prompt, efficient, reasonable, proportionate, impartial and procedurally fair “administrative conduct”. Similarly, s68 (2) gives anyone who has been adversely affected by “administrative conduct” the right to be given reasons in writing for such conduct. The word decision was avoided (I dare say, deliberately), buttressing the argument that a decision <em>per se</em> is not a <em>causa sine qua non</em> for the remedy of judicial review to be tenable. Fourthly, the Constitution provides a further rationale for not construing action to mean decision, and s46 (2) is a must read. It is couched as follows:</p> <p> </p> <p>“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or body must promote and be guided by the spirit and objectives of this Chapter”.</p> <p> </p> <p>It must be borne in mind that s46 (1) enjoins this court to give full effect to the rights and freedoms enshrined in this Chapter. It follows, in my view, that the best way to achieve this is to interpret the definition of “administrative action” in the AJA in a way which does not subsume action and decision into one. Such an approach would enhance the process of review by not confining it to decisions to the exclusion of examining the process and actions taken in the lead up to those decisions. In fact, the use of the formulation “administrative conduct” as opposed to decision, in s68 of the Constitution, makes it imperative for a wider interpretation to be given. In this respect, the Cambridge English Dictionary defines “conduct” as meaning “to organize and perform a particular activity”, while the Collins English Dictionary has a similar meaning.</p> <p>At any rate, this issue was settled in the South African case of <em>Oudekraal Estates (Pty) Ltd v City of Cape Town</em> 2004 (6) SA 222 (SCA), which held that recommendations constitute administrative action which remains valid until reviewed and set aside. In the jurisprudence of this court, the <em>obiter dicta</em> remarks in <em>Kazingizi v Dzinoruma</em> HH 106-06, are persuasive as MAKARAU and PATEL JJ (as they then were), appositely stated:</p> <p> </p> <p>“The integrity of the order lies in the procedure used to reach that order and the reasoning employed to opt for that particular result.”</p> <p>  In view of the foregoing, contrary to the position taken by the respondents, my view is that the forensic investigation undertaken by the second respondent and report produced by that exercise are reviewable. Accordingly, the preliminary objection has no basis and is dismissed.</p> <p> </p> <p><strong>Whether grounds for review exist</strong></p> <p>The question that must now be resolved is whether valid grounds for review have been established. I will now examine the grounds advanced in the application, but not in any particular order. The applicant submitted that the second respondent was not neutral and that the lack of impartiality affected its approach to the audit. If substantiated, this issue is material to the credibility and validity of the entire forensic investigation and findings culminating from that process. I turn to the letter of engagement signed between the Auditor General and the auditors on 15 May 2018. While the second respondent asserted that it was an impartial auditor, in that letter it intimates willingness to testify for a fee in criminal proceedings or disciplinary hearings which might arise from the report it prepared. That caused me concern.</p> <p>It is trite law that one need not establish actual bias but an appearance of bias. This was the test set by Supreme Court, in<em> Leopard Rock Hotel (Pvt) Ltd v Wallen Construction (Pvt) Ltd </em>1994 (1) ZLR 255 (S) at 273G-H and 274 A-C. In <em>Foya &amp; Mutimba v R &amp; Jackson N.O</em>. 1963 R &amp; N 318 (FS), it was stated that:</p> <p> </p> <p>“… what the applicants had to show was not necessarily personal animosity towards them. If they showed that the position was such that a reasonable man in their position would have thought that he would not have a fair trial in the circumstances and that there was nothing in further acts disclosed to indicate that there was not a real likelihood that would be enough”.</p> <p> </p> <p>I note that the engagement letter suggests an understanding between the parties that the audit may result in disciplinary or criminal action being taken. Thus, a reasonable person in the position of the applicant would be forgiven for thinking that the auditors were compromised as they were essentially touting for business relating to proceedings to future proceedings to either prosecute him or dismiss him from his job.</p> <p>            The applicant did not end there. He argued that the second respondent displayed bias against him in that the audit report is silent on cases of abuse of NSSA funds by former ministers Petronella Kagonge and Patrick Zhuwao. He submitted that the discriminatory approach was a manifestation of bias in the investigation. I observe that these specific allegations by the applicant were not answered, the second respondent (in para 42 of its opposing affidavit) preferring to provide the following reply:</p> <p> </p> <p>“Some issues picked by the applicant herein were clearly outside the scope of our mandate although they in the same vein do come across to me as an indirect admission by the applicant of not following laid down procedures just like the individuals he refers to. Be that as it may, since this fell outside our instructions, it may probably be of interest to the first respondent in respect of other proceedings, not necessarily investments, which is what we had been tasked to deal with”.</p> <p> </p> <p>I must say that I find the above response disingenuous (if not, dishonest). An examination of the terms of reference contained in Attachment “A” to the engagement letter does not support the stance adopted by the second respondent. It is obvious that the audit extended to human resources and <em>“any other issue that may arise”. </em>Indeed, the issue of board fees and promotions to senior positions which the audit dealt with are not investment matters. It is apparent that the allegations were not denied. More relevantly, the auditors did not say that the issues did not come to their attention. Rather, their attitude was that they were not part of their remit, so they had no business looking at them. I find that somewhat cavalier. Consequently, the failure to address this complaint seriously undermines the second respondent’s claim (in para 48 of Opposing Affidavit) that:</p> <p> </p> <p>“Applicant seems to miss the point that this is an impartial report which states facts supported by evidence. It is not meant to celebrate individual victories or punish individual mistakes. This is an audit of an organization”.</p> <p> </p> <p>The law is clear on the consequences of failure to deny a specific allegation of fact. For the avoidance of doubt, an unrefuted allegation is taken as having been admitted. See <em>Fawcett Security Operations v Director of Customs &amp; Excise </em>1993 (2) ZLR 121 (SC).</p> <p>            Not addressing the alleged financial indiscretions of ministers Kagonye and Zhuwao necessarily means that the differential treatment of the applicant and these officials remained unrebutted. The circumstances which implicate a breach of s56 of the Constitution have been the subject of discussion by the Constitutional Court in this jurisdiction. In this context, in <em>Nkomo v Minister of Local Government, Rural &amp; Urban</em> <em>Development &amp; Ors </em>2016 (1) ZLR 113 (CC) at 118H-119B by ZIYAMBI JCC (as she then was) asserted:</p> <p> </p> <p>“The right guaranteed under s 56 (1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position. It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected. In order to found his reliance on this provision the applicant must show that by virtue of the application of a law he has been the recipient of unequal treatment or protection that is to say that certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”    </p> <p> </p> <p>Inevitably, I am satisfied that the applicant has established that there was unequal treatment between him and the ministers. In the absence of a rational explanation or the differentiated treatment, is inescapable to conclude that the applicant established the ground of bias.</p> <p> </p> <p>Further, the question of alleged inflated payments in respect of Metbank properties and loss of US$4 million in a corrupt debt swap deal was not addressed. The applicant’s complaint was that the inflation of prices and swap arrangement had nothing to do with him as he had not joined NSSA when this occurred. No cogent reason was given for not providing an answer.  In face of such a damning indictment, the following response (in para 44 of the second respondent’s opposing affidavit) is dumbfounding:</p> <p> </p> <p>“The challenge bewitching the applicant is that he is taking this report personally. This is a wrong approach. As highlighted before, this report is not a personal attack on the applicant nor directed at him. The report is an audit of NSSA for the period set in the mandate and it is simply backed by evidence”.</p> <p> </p> <p>Quite clearly, the allegation called for a rebuttal beyond glossing over it. After electing not to dispute the averment which can be paraphrased; <em>“I did not do it as I was not there”,</em> I can see no conceivable basis for the second respondent to depose that the report was backed by factual evidence. On the principle that what is not denied is deemed to have been conceded, the applicant’s claim would carry the day. This court is compelled to make one of a few inferences. Either the auditors were biased against the applicant, or they did not apply their mind to the facts before them when conducting their forensic audit. On the extreme end, the court is compelled to conclude that it was case of incompetence. This issue has previously confronted this court. In <em>Ramilewa </em>v <em>Secretary of the Public Service Commission </em>1988 (1) ZLR 257 (H) at 262 B-F; GREENLAND J quoted with approval from <em>SA Defence and Aid Fund and Anor </em>v <em>Minister of Justice </em>1967 (1) SA 31 (C), where Corbett J at 34H-35D CORBETT J (as he then was) said:</p> <p> </p> <p>“The court can interfere and declare the exercise of the power invalid on the ground of a non-observance of the jurisdictional fact only where it is shown that the repository of the power, in deciding that the pre-requisite fact or state of affairs existed, acted <em>mala fide </em>or from ulterior motive or failed to apply his mind to the matter. See eg <em>Minister of the Interior </em>v <em>Bechler and Others supra </em>[1948 (3) SA 409 (A)]; <em>African Commercial and Distributive Workers’ Union </em>v <em>Schoeman NO and Another </em>1951 (4) 266 (T); Sachs 1953 (1) SA 392 (A).”</p> <p> </p> <p>In <em>casu</em>, no plausible reason has been availed for making a finding of fact or conclusion without an evidential foundation. The second respondent had all the facts before it, more so, relating to NSSA’s investments. It is simply unreasonable and irrational to make that kind of conclusion. In my view, reasonable administrative action is intrinsically linked to the principle of rationality. I can do no better that agree with the learned author, Cora Hoexter, in <em>Administrative Law in South Africa</em>, (1st ed) at 307, who gives the meaning of rationality as follows:</p> <p> </p> <p>"This means in essence that a decision must be supported by the evidence and information before the administrator as well as the reason given for it. It must also be objectively capable of furthering the purpose for which the power was given and for which the decision was purportedly taken."</p> <p> </p> <p>This means that an administrative decision which has been taken on an accurate factual basis is both unreasonable and irrational. In other words, if the decision has been made in ignorance of the true facts material to that decision or not considering relevant material, such a decision is reviewable. Whichever inference this court makes, it establishes a gross irregularity within the contemplation of s27 (1) (c). I therefore find that the applicant has established this ground of review.</p> <p>            Assuming that the second respondent chose to reject the position put across by the applicant in the questionnaire, at the very least, reasons ought to have been given for such a stance. See<em> Kazingizi v Dzinoruma supra</em>, where MAKARAU and PATEL JJ aptly proffered the rationale for providing reasons:</p> <p> </p> <p>“The absence of reasons for the judgment gave great cause for concern. It is trite that very trier of fact has to give reasons for his or her decision. A judicial decision that is not explained easily lends itself to criticisms of being arbitrary and/or capricious. Where the litigants have presented their competing facts and arguments before the trial court, they have a legitimate expectation to know whether their version of facts and their argument have been received and if not, why…One could very well argue that the failure to give reasons for judgment is a gross misdirection on the part of the trial court and one that vitiates the order given at the end of the trial…The integrity of the order lies in the procedure used to reach that order and the reasoning employed to opt for that particular result.”. </p> <p> </p> <p>I endorse the self-compelling logic of this judgement and respectfully state that it applies with equal force to administrative decision-making. Reasons are invariably linked to the concept of rationality. I take the view that a finding or a decision will be considered to be reasonable when there is a material connection between the evidence and the result. Such a connection is explained in the decision maker’s reasons. Also worth mentioning is that the apparent out of hand rejection of the applicant’s answers in the questionnaire effectively means that he was denied the right to be heard in violation of the rights guaranteed by s3 of the AJA. In this respect, PATEL JA succinctly explained what constitutes acting in a fair manner in <em>Attorney-General v Leopold Mudisi &amp; Ors</em> SC 48-15, in the following terms:</p> <p> </p> <p>“The obligation to act in a fair manner is further expanded in s 3 (2) of the [Administrative Justice] Act to require the giving of “adequate notice of the nature and purpose of the proposed action” and “a reasonable opportunity to make adequate representations” as well as “adequate notice of any right of review or appeal where applicable”.</p> <p> </p> <p>In light of the conduct exhibited by the second respondent above, the applicant did not get a fair hearing in breach of his rights. This obviously triggers his right of review in terms of s 27 (1) (c) of the High Court Act.</p> <p>Finally, I would add that insofar as the integrity of the order lies in the procedure used to reach that order, it cannot be gainsaid that the process giving rise to an executive decision is reviewable. The point <em>in limine</em> that there are no grounds for review has no foundation and is dismissed.</p> <p> </p> <p><strong>Conclusion</strong></p> <p>As I have found that they the investigation leading to the report was biased and that the auditors did not apply their minds to issues before them, I do not propose to deal in detail with the other grounds raised by the applicant. At any rate, I believe that they have been sufficiently covered in my judgment. It is worth emphasizing that the inaccuracies in the report speak to failure to apply one’s mind to the issues for determination before it.</p> <p>In respect of costs, the conduct of the second respondent warrants censure. The record shows that it was within its power to eliminate some of the failures which undermined the applicant’s rights. For example, the period the applicant joined the NSSA board could have been easily verified from information in its possession. Again, it would not have been difficult to consider the answers given by the applicant and provided reasons for discounting them. In respect of the alleged financial improprieties of ministers Kagonye and Zhuwao, the court is not convinced by the reason given for not confronting them in the report. It is evident to me that they fell within the second respondent’s brief, but were unexplainably avoided. In the exercise of my discretion, I have decided to award punitive costs against the second respondent. As no costs were sought against the first respondent, I will grant the order as prayed in the draft order.</p> <p> </p> <p><strong>Disposition</strong></p> <p>The Court is empowered in terms of section 28 of the High Court Act to issue a range of orders if it is satisfied that the conduct complained of falls foul of the provisions of the Administrative Justice Act or the Constitution.</p> <p> </p> <p>In the result, I make the following order:</p> <p>IT IS ORDERED THAT:</p> <p> </p> <ol> <li>The forensic audit of the National Social Security Authority [“NSSA”] for the period 1 January 2015 to 28 February 2018 produced on behalf of the Auditor General of Zimbabwe by BDO Chartered Accountants be reviewed and set aside in all those respects that pertain, whether directly and/or indirectly to the applicant.</li> </ol> <p> </p> <ol> <li>Costs of suit shall be borne by the second respondent on the higher sale of legal practitioner and client scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Rubaya &amp; Chatambudza</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, first respondent’s legal practitioners</p> <p><em>Sawyer &amp; Mkushi,</em> second 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/2020/405/2020-zwhhc-405.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=73998">2020-zwhhc-405.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/2020/405/2020-zwhhc-405.pdf" type="application/pdf; length=608316">2020-zwhhc-405.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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bias">bias</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/bulawayo-high-court/2015/137">CBZ Bank Ltd. v Ndlovu N.O. &amp; Another (HC 312-14) [2015] ZWBHC 137 (08 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2006/106">Kazingizi v Dziniruma (CIV (A) 64/05) [2006] ZWHHC 106 (10 October 2006);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/48">AG v Mudisi &amp; Others (SC 62/12) [2015] ZWSC 48 (27 July 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/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</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> Wed, 24 Jun 2020 13:11:02 +0000 Sandra 9697 at https://old.zimlii.org The State & Another v Machaya & 7 Others (HH 442-19, HC 2189/19 Ref HC 1994/19 CRB GWP 28/18, 214-216/18, 219/18, 1358/18 & 1359/18) [2019] ZWHHC 442 (10 June 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/442 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>JAISON MAX KORERAI MACHAYA</p> <p>and</p> <p>CECILIA CHITIYO</p> <p>and</p> <p>SHEPHERD MARWEYI</p> <p>and</p> <p>MATILDA MANHAMBO</p> <p>and</p> <p>CHISAINYERWA CHIBURURU</p> <p>and</p> <p>ETHEL MLALAZI</p> <p>and</p> <p>HONESTY MAGAYA</p> <p>and</p> <p>RHORY ANDREW SHAWATU</p> <p>versus</p> <p>THE STATE</p> <p>and</p> <p>SIBONGILE MSIPA – MARONDEDZE REGIONAL</p> <p>MAGISTRATE N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 2 April, 2019 and 14 June 2019</p> <p> </p> <p> </p> <p><strong>Urgent Chamber application for stay of proceedings pending decision on review</strong></p> <p> </p> <p> </p> <p>A. <em>Muchadehama</em>, for the applicants</p> <p><em>E. Mavuto, </em>for the 1st respondent</p> <p> </p> <p> </p> <p>            CHITAPI J: This is an application for an order of stay of criminal proceedings pending before the second respondent. The order sought is in the mature of a provisional order returnable for confirmation on the return date. The provisional order and the final order sought are similar. On the return date the applicants simply want the court to confirm the provisional order.</p> <p>            “TERMS OF THE FINAL ORDER SOUGHT</p> <p>            IT IS ORDERED THT:</p> <ol> <li>Criminal proceedings against the Applicants under CRB-GWP 1253-4/18 be and are hereby stayed pending the outcome of the application for review in Case No. HC 1994/19</li> </ol> <p>INTERIM RELIEF GRANTED</p> <p>IT IS ORDERED</p> <ol> <li>Pending the confirmation or discharge of this provisional order, criminal proceedings against Applicant under CRB GWP 1253-5/18 be and are hereby stayed.</li> </ol> <p>            The provisional order is faulty. There is nothing new to confirm. Once the provisional relief is granted staying the continuance of criminal proceedings against the applicants pending the determination of their review applications, the effect of such an order is that the main relief will have been granted. To return to court for confirmation does not make sense because the court will be asked to simply repeat itself or endorse what it previously stated. This is a waste of time and amounts to an exercise in futility.</p> <p>            The error committed by the applicant’s legal practitioners in drafting the provisional order emanates from a failure to comprehend the purport of r 244 and 246 (2).</p> <p>            In the case <em>Balasore Alloys Ltd </em>v <em>Zimbabwe Alloys Ltd and Ors </em>HH 228/18, the court had occasion to discuss the purport of r 244 and 246 (2). I need to emphasize that there is nothing in the rules or in practice given the original jurisdiction of this court in all civil and criminal matters as given in s 171 (1) (a) of the Constitution to debar the court from granting a final order in an urgent application. The facts and circumstances of each case will inform the court as to the nature of the order to grant. However, in deference to the <em>audi alteram</em> <em>portem </em>rule, the court or judge if inclined to grant a final order would need to invite interested and affected parties to make any representations which they may wish to before the grant of the order. Rule 246 (2) covers situations in which the applicant has applied for a provisional order returnable to court. The provisional order is granted as prayed for or as varied. In order to protect affected parties from loss or damage which may be caused by the order, the court may order that the applicant provides such security as the judge may determine. Not all applications brought on an urgent basis are for a provisional order. For example an application for a spoliation order is not returnable to court for confirmation.</p> <p>            In <em>Samukeliso Mabhena </em>v <em>Edmund Mbangani</em> HB 57/18, Mathonsi J, disagreed with the applicants’ contention that there was nothing in the rules to preclude an applicant in an urgent application from seeking a final order. The learned judge referred to 246 (2) which obliges the judge to grant the provisional order as sought or as varied if the papers establish  a <em>prima facie </em>case. The learned judge further stated:</p> <p>“It is a well  established practice of this court that in an urgent application the court grants interim relief and not substantive or final relief. It does so because the rules do not call on applicant to prove its case but merely a <em>prima facie</em> case. In this regard, a practice has evolved wherein an urgent application is accompanied by a provisional order for the judge to consider granting interim relief. Tthe substantive or final relief is then considered on the return date of the provisional order.”     </p> <p> </p> <p>I am in agreement with the reasoning of Mathonsi J. It must however be noted that</p> <p>the learned judge was dealing with applications in which a provisional order would have been sought as provided for in r 246 (2). The point which I make however is that there is no rule which provides that every urgent application should be accompanied by a provisional order. Indeed r 244 is clear in this regard and provides that the judge to whom an urgent application is submitted “shall consider the papers forthwith”. The proviso to r 244 provides that the judge may direct that interested parties are invited to make representations on the urgency of the matter. (own underlining).</p> <p>            It however appears to me that another practice has evolved in this court whereby the respondents are as a matter of course served with urgent applications. They are then given the opportunity to address the judge not only on the urgency of the matter as postulated in the proviso to r 244 but are allowed to respond to the merits of the application. The return date is intended to allow the respondents time to respond to the application on the merits. Form 29C is clear in this respect. It presupposes that the respondents did not address the merits of the application. The respondent is given an opportunity to do so including being given leave to anticipate the return date in the event that the respondent can show good cause to justify that the matter be heard earlier than what the normal court time times allow.</p> <p>            What needs to be interrogated is a simple question. If the respondent addresses the merits of the urgent application as opposed to addressing only on the urgency of the application as provided for in r 244 is the judge not placed in a position to determine the matter on a balance of probabilities. The respondent in practice now usually responds on the merits on affidavit including annexing supportive or corroborative evidence. The judge would therefore be placed in a position to determine the urgent application on balancing the two sides and the probabilities taking into account the respondents’ response on the merits. Other than the absence a reply and of heads of arguments, which pleadings are sometimes filed by the parties by the time the application is dealt with, the urgent application in such a case would be no different from an ordinary application. I do not find any rationale for then not to make a final order in such circumstances. It is either, the judge must limit the respondent to only address on whether or not the application is urgent and leave the applicant to establish a <em>prima facie</em> case without rebuttal by the respondent, or if the respondent is allowed to address the merits, the application will have gone outside the ambit of r 244 in the proviso thereof and r 246 generally. I would therefore respectfully hold that where in an urgent application made in terms of r 244 rules 246, the respondent addresses the merits of the application thus placing the judge in a position to determine the application on a balance of probabilities after considering and weighting the applicant and respondents’ affidavits on the merits, the rationale for granting a provisional order returnable to court for argument falls away. One would not expect that the respondent will respond differently on the merits and certainly it would be improper to afford the respondent a second bite of the cherry and build further on the grounds for opposition on the merits. The respondent must take a position to either only address the issue of urgency as postulated in the proviso to r 244 and reserve addressing the merits for the return date in the event that the judge grants the provisional order or elect to address the merits as well, thereby compromising the right to again respond to the merits on the return day as it would cease to make sense to order parties to return to court.</p> <p>            Lastly on the above issue, r 4C provides for “Departures from rules and directions as to procedure”. In particular, rule 4C (b) provides that:</p> <p>“The court or a judge, may in relation to any particular case before it or him as the case may be -  </p> <ul> <li> </li> <li>Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appears to it or him, as the case may be, to be just and expedient.”</li> </ul> <p> </p> <p>In my reading of rr 244, 246 and 247, there is no provision for the respondent in an</p> <p>urgent application brought in terms of the cited rules to address the merits of the application as in a fully-fledged opposed application. At best the judge before whom the application has been placed for consideration may exercise the discretion to invite the respondent as an interested party and indeed any other interested party “to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.” Once the respondent addresses the merits beyond urgency, then, it must be held that such procedure is not expressly provided for in the rules. The judge is empowered to give directions as may be expedient in the interests of justice to best determine the application. In this regard parties are often asked to address the court on whether given that the respondent has utilized the opportunity given to address the merits, any purpose would be served by the issuance of a returnable provisional order or the judge simply either grants a final order or dismisses the application as the judge may determine.</p> <p>            In this application Mr <em>Mavuto</em> did not file any opposing papers. He however submitted that he was in a position to make oral argument and would dispense with the need to file a formal opposing affidavit. I asked Mr <em>Mavuto</em> whether he would be addressing the issue of urgency only as postulated in the proviso to r 244 or the merits as well. Mr <em>Mavuto</em> indicated that he would submit on the merits as well. When I sought the views of both Messrs <em>Mavuto</em> and <em>Muchadehama</em> whether if Mr <em>Mavuto</em> addressed the merits, there would be any need for the matter to return to court, counsel agreed that such need would not arise and that the determination I would make would be final. The hearing was convened on this understanding following which I reserved judgment. I advised counsel that I needed to consider the bulky record of proceedings and to also express my views in a judgment on the purport of rr 244, 246 (2) and 247 of the High Court Rules in relation to the granting of a provisional order where the respondent has argued the merits of the matter as opposed to granting a final order. In order to regulate what would become of the applicants’ trial in the interim I provisionally stayed its further continuance pending my judgment. For the reasons I have given on the propriety of granting a final order where the respondent has gone further to address the merits of the application as opposed to the urgency of it only, this judgment is final. I also note that even if I may be wrong in my interpretation of the applicable rules, counsel in any event agreed that I grant a final order.</p> <p>            The circumstances or background to this application is that the 8 applicants were charged with 23 counts of Criminal Abuse of Duty as defined in s 174 (1) of the Criminal Law (Codification &amp; Reform) Act, [<em>Chapter 9:23</em>]. The applicants during the period of the alleged commission of the offences, being January, 2005 to April, 2013 were said to be public officers in the employ of Government stationed in the Midlands Province. The first applicant was the Governor and Minister for Provincial Affairs, the second applicant the Provincial Administrator and the rest high ranking officials whose duties included State land allocations. The general thread of the charges preferred against them without singularising them was that they acted contrary to, or inconsistent with their duties as public officers for purposes of showing favour to a number of listed land developers, church and other organisations by unlawfully designing, approving lay out plans, allocating state land, disposing of commonage stands, processing survey instruction letters and processing valuation letters in regard to listed state land. In short, the applicants are alleged to have dealt in State land without the authority of the Minister of Local Government Public Works and National Housing who is presented in the state allegations as the “sole responsible authority for allocating state land.” The State land in question upon a perusal of the charges fell within the districts of Gweru, Zishavane and Shurugwi.</p> <p>            The applicants appeared before the Regional Magistrate at Gweru on 18 January 2019 to answer the charges. On that date, the trial did not commence. Counsel for the applicants applied for the trial to be postponed on account of them not having fully prepared for trial because the applicants had not been furnished with a number of State papers which counsel required to prepare for trial. At least one counsel Mr <em>B Dube</em> for second applicant was not available. There were about 5 counsels in all. A protracted and contested application for postponement followed. The second respondent relying on the case of <em>S</em> v <em>Ndabaningi Sithole</em> 1996 92) ZLR 593 in which the court held that the accused is entitled to witness statements in the police dockets ruled in favour of the applicants and ordered the prosecuting team to furnish applicants’ counsel with all information they required to adequately prepare their defences for trial. The trial was postponed to 4-8 March 2019 for trial commencement.</p> <p>            I must in passing express my disquiet at the manner that the trial was handled and in its to failure to take off. There was lack of pre-trial consultations between the State and defence counsel. In trials which are as involved as the one <em>in casu</em>, where there would be multiple charges and multiple accused persons, the prosecution and defence counsels should avoid having to meet for the first time on the day of trial. Pre-trial meetings at which the counsel would have discussed exchange of documents required for trial should have been convened. For counsel to appear on date of trial to seek a postponement on the basis that the State counsel did not supply counsel with a warned and cautioned statement or any other document on time speaks to a want of professionalism on the part of counsel. Equally, the prosecutor does not escape the criticism of unprofessionalism because it would be expected that prior to trial, the prosecutor would have requested the defence counsels to provide defence outlines if it was intended that the accused would testify or to indicate that accused will not testify or elect to remain silent. One wonders how without prior engagements amongst counsel, the prosecution would decide on which witnesses to call. A criminal trial is not a game of hide seek. The State must be open to the defence by advising of the evidence to be led and documents to be produced. Equally the defence should if it intends to lead evidence do likewise. A hide and seek approach is inimical to sound justice. The attitude or approach to case management whereby witnesses are called <em>en masse</em> only to be excused because their evidence is not considered necessary should be avoided not only because of the inconvenience it causes to the witnesses but bringing unnecessary witnesses to court causes financial prejudice to the <em>fiscus</em> since witness expenses are a charge on State funds. This happens when there is no pre-trial consultations. <em>In casu</em> two witnesses who had travelled from Harare travelled for nothing and had to go back. The witnesses included Ringson Chitsiko, permanent secretary. The practice of postponing trial due to poor planning and case management brings the criminal justice system into disrepute. The Regional Court is the highest court within the magistrates court system. Proceedings in that court should reflect the serious nature of the cases which are brought to that court. It should not be just another day in court for counsel and accused persons who appear in that court. In terms of s 171 (1) (b) of the Constitution, the High Court. “has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions”. It is on the basis of the supervisory powers which this court has over the lower courts that I considered it appropriate to express a supervisor’s disquiet over human fault in causing this case not to commence.</p> <p>            Reverting to the conduct of the trial, when the matter resumed on 4 March, 2019, the defence counsel led by Mr<em> Muchadehama</em>, counsel for first and fifth applicants made an application for permanent stay of prosecution. Other counsel’s associated themselves with his submissions. The gist of the application was that the applicants fundamental rights would be infringed if the trial was allowed to continue. The applicants relied on s 85 of the Constitution as reads with s 167 A of the Criminal procedure and Evidence Act, [<em>Chapter 9:07</em>]. The latter section enjoins the court to investigate any delay in bringing an accused to trial or to complete proceedings where the delay appears unreasonable and where the delay could “cause substantial prejudice to the prosecution, to the accused or his or her legal representative, to a witness or other person concerned in the proceedings or the public interest. The provisions of s 167 A (2) lists a number of factors which the court must consider in the investigative process. Section 167 A (3) lists the nature of the orders which the court may grant in addition to any other appropriate order which the court may grant. One of the orders which the accused person may pray for as did the applicants in this case is that provided for in s 167 A (3) (b) (iii). In terms thereof the court may order “that the prosecution of the accused for the offence be permanently stayed.”</p> <p>            To support the application, the applicants argued that their right to a fair trial was being violated because they were only arrested in 2018 for offences allegedly committed in 2004. It was further contended on their behalf that some of the applicants were not even working in the Midlands Province in the period covered by the charges. Without going into detail on the application since it is the subject of a review case which is pending before this court, it suffices to note that the second respondent dismissed the application. The second respondent in a brief judgment reasoned that issues raised by the defence counsels were triable issues in which witnesses would have to testify. She ruled as follows in the operative part:</p> <p>            “…From the application by the defence counsels for the accused persons, the court is satisfied     that there is no constitutional question to be referred to the Constitutional Court for its    determination. Having stated the above reasons the court is satisfied that these applications by    the defence counsel for accused person is frivolous and vexatious. It has no merit and is done      to delay the trial proceedings in this case.</p> <p>            In the circumstances the application is hereby dismissed.”</p> <p> </p> <p>            I am constrained to state that there appears to be some confusion in the judgment because reference is made therein to the applicants having made application in terms of s</p> <p>167 A of the Criminal Procedure and Evidence Act. If that be so the question of referral of the matter to the Constitutional Court does not arise. The court acting in terms of s 167 A carries out an investigation on the delay and must give an appropriate order which in terms of s 167 A (3) would be subject to appeal by the Prosecutor General if it is in the nature of an order for a permanent stay of prosecution. I will however leave it at that being again mindful not to express comments or make finding which would materially impact on the review application still to be determined.</p> <p>            The applicants’ counsel consequent on the dismissal of their application next applied for a postponement of the case to allow them time to file applications in this court for review of the second respondents ruling and a concomitant application for stay of the continuation of the trial proceedings before the second respondent pending the determination of the review application. The latter application is the one before me and subject of this judgment. The application for postponement was opposed by the State counsel who argued that the applicants did not demonstrate that there were reviewable issues arising and that the applicants’ recourse was to note an appeal. It is however not necessary for me to delve into the further merits of what was argued before the second respondent because the second respondent in fact determined the application made before her and stayed the proceedings maybe unwittingly.</p> <p>            The second respondent in his ruling stayed the proceedings to allow for the filing of the application for review. In the ruling made on 5 March, 2019 which was Tuesday, the second respondent postponed the trial to “Thursday” which would be on the 7th March to allow the applicants’ counsel to, in the second respondent’s words, “show that he is doing something.” The short ruling states:</p> <p>            “BY COURT</p> <p>            Its okay that is why I said maybe for review at least he must give us something that (sic) to          show that he is doing something. If the one the urgent chamber application will take longer      there is no problem but as long as on Thursday he is back to show us that he has already         served the High Court with these applications for review that is what I want. Then if you are      agreeable that High Court is very busy or whatever then to agree on a date as long as there is proof they are doing something because we may say come back on the 14th then these guys          just abandon everything then at the end of it or it will us (<em>sic</em>) to blame. So Thursday review    stamped by the High court of the Registrar (<em>sic</em>) indicating that they are going to argue their          matter will be enough. Then we agree on the next date for their application for the stay</p> <p> </p> <p>            BY THE STATE</p> <p>            Yes your worship i do agree with you now. I understand. Thank you very much.”</p> <p> </p> <p>            The above captured what the second respondent had to say before she advised counsel that she would not be coming back for purposes of further remands. I assume  that she must have been seconded to deal with the case from another regional division.</p> <p>            The view I take of the matter is that the second respondent stayed the proceedings before her in order to allow the applicants’ to file for review of her decision. She gave time limits for the filing of the application. The applicants filed the application for review as indulged by the second respondent and the application is pending determination under case No. HC 1994/19. A court should not stay proceedings to allow for the filing of the review of its order unless it considers that the proposed review application enjoys some prospects of success. I have to assume that in staying the proceedings for that purpose by way of postponing the trial to allow for the filing of the review application, the second respondent considered that the proposed review application had merit. I am fortified in reasoning that the second respondent considered the merits of the proposed application for review because she stayed or postponed the trial after hearing full and protracted arguments by both the defence and State counsels on the issues which the Defence intended to argue on review. The magistrate was referred to case authorities which propound the undesirability of having this court interfere in on-going uncompleted proceedings in inferior courts save for special reasons where a miscarriage of justice would result see <em>Attorney General</em> v <em>Makamba</em> 2005 (2) ZLR 54 (S). She postponed the trial in full knowledge of what the superior court practice is in regard to review of ongoing proceedings.</p> <p>It must be observed that in terms of the provisions of ss 165 and 166 of the Criminal Procedure &amp; Evidence, the second respondent was within her powers to postpone or adjourn the pending criminal trial of the applicants if she considered it necessary or expedient to do so and to impose such terms as appeared to her proper in regard to the postponement of the trial and any further postponement thereafter. If as happened in this case, the second respondent postponed the trial of the applicants to allow them time to file a review application of the second respondent ruling, then so be it. It was within her powers to do so. It would not make sense nor would it be logical to reach any other conclusion than that the purport and effect of the second respondent’s decision was that the trial would only proceed consequent on the decision which would be passed on review.</p> <p>In my judgment, the filing of the present application for stay of proceedings may have been filed <em>ex abundanta</em> <em>cautela</em> by the applicants. It is however superfluous because the second respondent ordered a stoppage of the trial pending the filing of the review application. To then petition this court to further stay the same trial pending the determination of the review application was in the circumstances of this case unnecessary. Once the second respondent had dismissed the defence applications for a permanent stay of prosecution and/or referral to the Constitutional Court as happened, she should have ordered that the trial should proceed.  She was advised of the applicant’s desire to file for review and was requested for a postponement for the purpose of the filing of that application. The second respondent obliged. That was it. The order she made stands. The trial remains postponed until the review application is determined.</p> <p>Before I endorse the order which follows on my judgment, there is a matter which I must comment upon. This court has of recent been inundated with applications for review of uncompleted proceedings in the magistrates court. The filing of the applications has been viewed in some quarters as a ploy to delay trials or finalization of ongoing and pending trials. The filing of review applications at any stage of the criminal proceedings is permissible at law. It is part of due process in the application of the rules of procedure. The rule of law must be observed. What the courts have done is to adopt an attitude or approach which allows for and observes the need for the criminal justice to flow by not unnecessarily interfering in uncompleted proceedings. The rationale for the approach is legally sound. The inferior courts are established by law to determine cases placed before them to finality. The approach of this court should therefore be to respect the complete exercise of jurisdiction by those courts and to exercise review and appeal powers after the conclusion of the proceedings. There is a plethora of cases in this and other jurisdictions which provide that this court will not intervene in uncompleted proceedings save in exceptional circumstances where an injustice which cannot be redressed by other means in due course may otherwise result: See <em>Attorney General</em> v <em>Makamba (supra</em>); <em>Matapo &amp; Ors </em>v <em>Bhila N.O and Anor </em>2010 (1) ZLR 321 (H); <em>Dzinga Navhunjire</em> v <em>S </em>HH 169/17; <em>Ndlovu</em> v <em>Regional</em> <em>Magistrate, Eastern Division &amp; Anor</em> 1989 (1) ZLR 264, <em>Masedza &amp; Ors</em> v <em>Magistrate Rusape &amp;</em> <em>Anor</em> 1998 (1) ZLR 36 (H0, <em>Lee Waverly John</em> v <em>S &amp; Anor</em> HH 242/13, <em>Levi Nagura</em> v <em>Mazhanje &amp; Anor</em> HH 227/18, <em>Garikayi Mberikwazvo</em> v <em>Magistrate Kadoma &amp; Prosecutor General</em> HH 195/18.</p> <p>In South Africa the courts follow the same approach as in this jurisdiction in that superior courts will not interfere in unfinished proceedings of lower courts unless a grave injustice may result. See <em>S</em> v <em>Masiya &amp; Ors</em> 2013 (2) SACR 363 and <em>Motata</em> v <em>Nair N.O &amp; Another</em> 2009 (2) SA 595 (T) where it is stated as follows at para 9:</p> <p>“It is trite that as a general rule, a High Court will not, by way of entertaining an application for review, interfere with uncompleted proceedings in a lower court.”</p> <p> </p> <p>It follows that it is only in special or exceptional cases therefore that a departure from</p> <p>the general rule may be justified.</p> <p>            The next point which arises following up on the above is “if the High Court will only intervene in uncompleted proceedings as an exception” is the High Court holding on to or delaying the determination of the review application? The answer is no. A review brought by the accused is in the nature of a civil application. The rules relating to court applications apply in terms of the sequence and time limits for filing pleadings which are a prerequisite for the application to be heard. The rules of court are drafted in such a manner that the process of bringing a case to set down is party driven and not court driven. In other words, if an application is filed and parties do nothing about it, then it remains unactioned. The judge does not go about tracking an application and how the parties are managing it.</p> <p>No blame for should be attributed to the High Court where parties do nothing to further their cases because of the party driven nature of the litigation system. I want to suggest however that where a trial has been postponed or stayed pending a decision on review, the presiding magistrate should not just perfunctorily continue to postpone the trial pending a decision on review. The magistrate should actively enquire into and endorse on record the progress of the matter on review by enquiring of the accused and the prosecutor on the active steps being taken to have the review application determined. In this way the trial court will at least appreciate that the review application is being pursued.</p> <p>            The State prosecutors should in this regard also not be docile but should actively follow up on the application and place the applicant (accused) on his or her toes to prosecute the review application or have it dismissed. If I take for example the review application HC 1994/19 filed in this case, the application was filed on 11 March 2019. It was served on the State on the same date at the offices of the National Prosecuting Authority at 1610 hours. In terms of the rules of court, the State was supposed to file its notice of opposition and opposing affidavit and supporting documents within 10 days of service of the application. The 10 days expired on 25 March 2019. The notice of opposition and opposing affidavits were only filed on 8 April 2019. The delay in filing the opposing papers meant that another 10 day delay in processing the paper trial was added by the failure by the State to timeously file its opposing papers. The additional 10 days did not only mean the prolonging of the disposal of the matter. By not filing the opposing affidavit within the 10 working days of service, the State was automatically barred by reason of the provisions of Order 33 r 258 which provides that the provisions Order 32 which deals with court application other than for review, will apply to court applications for review. In terms of Order 32 r 233 (3), the State’s opposition is not properly before the court and in terms of Order 12 r 83 (a), the Registrar should not have accepted for filing the notice of opposition. As matters stand now, the review application is unopposed since the court cannot consider the opposing papers filled by the State as properly before it unless the bar is uplifted.</p> <p>            For their part, the applicants have not taken further steps to have the review application disposed of even though it is effectively unopposed. Under the circumstances the court has no power to order the applicants to set down their application for judgment. The State by reason of the bar operating against them cannot move for the dismissal of the application for want of prosecution. The trial magistrate can however review her order in which she postponed the trial to enable the applicants to prosecute their intended review application on the grounds that the application is not being prosecuted and that therefore the grounds on which the postponement was granted can no longer hold. Every postponement in any event must be based upon good grounds which merit that the court exercises judiciously its discretion to allow the postponement or any subsequent one. The system is therefore self-regulating if the trial courts monitor the progress of cases referred on review and require the accused to continue to justify further postponements and to explain why his or her review has not been concluded or determined. It is not sufficient for the trial magistrate to simply accept at face value the accused’s excuse that the review application is still pending before the High Court without much ado.</p> <p>            Lastly in regard to the bar in operation against the State, the record of review shows that the State followed up on the notice of opposition by filing on 7 May 2019 a notice of amendment to the notice of opposition. Again the Registrar should not have accepted the pleading until the bar had been uplifted. By filing a further pleading instead of applying for upliftment of bar I got the distinct impression that the State counsel may not be knowledgeable in civil procedure. I may be wrong in this apprehension but how does counsel think that pleadings can be filed outside of the court rules without condonation for non-compliance. These matters of capacitation of counsel in the National Prosecuting Authority in relation to understanding civil practice and procedure should not be swept under the carpet but addressed if an efficient criminal justice delivery system is to be realized. Short of this it will remain a mirage.</p> <p>            Having digressed to comment on the conduct of the State and defence counsels in regard to the review application itself and further given directions on the duty of the trial magistrate to monitor the progress of the review application since she postponed the trial to enable the applicants to bring her determination on review, I otherwise issue an order in relation to the application for stay of trial proceedings pending the decision of the review application HC 1994/19 as follows</p> <p>            1. Proceedings already stayed pending review by the trial court.   </p> <p>2. The application is struck off the roll with no order as to costs.</p> <p>3. Copy of this judgment must be availed to the Chief Magistrate and the Prosecutor General.</p> <p> </p> <p>   <em>Mbizo Muchadehama and Makoni, </em>applicants’ legal practitioners</p> <p><em>The National Prosecuting Authority, </em>1st 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/harare-high-court/2019/442/2019-zwhhc-442.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34226">2019-zwhhc-442.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/2019/442/2019-zwhhc-442.pdf" type="application/pdf; length=174515">2019-zwhhc-442.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/criminal-procedure">CRIMINAL PROCEDURE</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/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation-review">Condonation (Review)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</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/bulawayo-high-court/2018/93">Mbangani v Mabhena (HB 93-18, HC 3274/17) [2018] ZWBHC 93 (29 March 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/227">Nyagura v Tilda Mazhande N.O. &amp; Another (HH 227-18, HC 2938/18 REF CRB HREP 2287/18) [2018] ZWHHC 227 (25 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 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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 18 Jul 2019 09:38:33 +0000 admin 9364 at https://old.zimlii.org Ex- Constable Makumbi v The Commissioner General of Police & 2 Others Ex-Sergeant Mafenya v The Commissioner General of Police & 2 Others (HB 1-19, HC 1229/17; HC 1214/17) [2019] ZWBHC 1 (10 January 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2019/1 <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>EX-CONSTABLE MAKUMBI                                                                  HC 1229/17</strong></p> <p><strong>Versus</strong></p> <p><strong>THE COMMISSIONER GENERAL OF POLICE</strong></p> <p><strong>And</strong></p> <p><strong>THE CHAIRPERSON OF THE </strong></p> <p><strong>POLICE SERVICE COMMISSION</strong></p> <p><strong>And</strong></p> <p><strong>THE MINISTER OF HOME AFFAIRS</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>EX-SERGEANT MAFENYA                                                                     HC 1214/17</strong></p> <p><strong>Versus</strong></p> <p><strong>THE COMMISSIONER GENERAL OF POLICE</strong></p> <p><strong>And</strong></p> <p><strong>THE CHAIRPERSON OF THE </strong></p> <p><strong>POLICE SERVICE COMMISSION</strong></p> <p><strong>And</strong></p> <p><strong>THE MINISTER OF HOME AFFAIRS</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 2 FEBRUARY &amp; 20 DECEMBER 2018 &amp; 10 JANUARY 2019</p> <p> </p> <p><strong>Opposed Court Application</strong></p> <p> </p> <p><em>R. Ndou</em> for the applicants</p> <p><em>L. Musika, R. Taruberekera, I. Dube &amp; B. T. Nyoni </em>for the respondents</p> <p><strong>            TAKUVA J:</strong>  At the hearing of these matters <em>Mr L. Musika</em> applied to have the two cases consolidated since the facts, issues and legal principles to be argued are the same.  <em>Mr Ndou</em> for the applicants agreed and both cases were consolidated.  The result is that I will deliver one judgment instead of two.</p> <p>            The background in respect of each case is as follows:</p> <ol> <li><strong>Ex-Sergeant Mafenya</strong></li> </ol> <p>Both parties have not divulged what caused the applicants’ discharge by the 1st respondent.  Be that as it may, on 7 November 2016, applicant received a radio communication from the 1st respondent to the effect that he had been discharged from the police service with effect from the 2nd day of November 2016. Aggrieved, applicant filed his notice of intention to appeal to the 2nd respondent on 7 November 2016.  On 14 November 2016 applicant filed his notice and grounds of appeal with the 2nd respondent.</p> <p>The 1st respondent did not reinstate the applicant pending the determination of his appeal.  Instead, in a letter dated 24 March 2016, served to his legal practitioners, applicant was advised that the 2nd respondent had turned down his appeal.  He was not informed of the reasons despite asking for them verbally.  According to him the failure to supply him with reasons is unlawful and wrongful.  Further, he also contended that the respondents’ failure or refusal to reinstate him into the police force is unlawful and wrongful.  Applicant also argued that the decision of the 2nd respondent is not only “unlawful but unconstitutional in that this body is not recognized by law”.</p> <p>Finally, applicant’s prayer for a declaratur is as follows;</p> <p>“1.       The discharge of the applicant from the Police Service by the 1st respondent be and is hereby declared wrongful and unlawful and accordingly set aside.</p> <ol> <li>The 1st respondent is ordered to reinstate the applicant to the Police Service and the 2nd respondent is ordered to regularise the applicant’s reinstatement by the 1st respondent forthwith.</li> <li>The 1st respondent is ordered to pay costs of suit.”</li> </ol> <p><strong>Ex-Constable Makumbi</strong></p> <p>Facts</p> <p>            This is a court application for a declaratur on the following background facts:  Applicant was discharged from the Police Service on 1st September 2016.  After being served with a discharge radio on 27 October 2016 he immediately filed a notice of intention to appeal together with a notice of appeal plus grounds of appeal with the 2nd respondent in terms of section 51 of the Police Act (Chapter 11:10).  Applicant was reinstated into the Police Service on the 10th of November 2016.</p> <p>            On 24 March 2017, applicant was informed of his appeal’s dismissal through a letter served to his legal practitioners.  The letter did not contain reasons for the 2nd respondent’s decision notwithstanding having made a “verbal request” to be furnished with reasons.</p> <p>            Unhappy with the outcome applicant filed this application seeking the following relief:</p> <p>“1.       The discharge of the applicant from the Police Service by the 1st respondent be and is hereby declared wrongful and unlawful and accordingly set aside.</p> <p>2.         The 1st respondent is ordered to reinstate the applicant into the Police Service and the 2nd respondent is ordered to regularize the applicant’s reinstatement by the 1st respondent forthwith.</p> <p>3.         The 1st respondent is ordered to pay costs of suit”.</p> <p>The following issues are common to both applications.</p> <ol> <li>Whether or not applicants were properly furnished with reasons for the dismissal of their appeal by the 2nd respondent?</li> <li>Whether or not the Police Service Commission is properly constituted in terms of the Constitution?</li> </ol> <p>The third issue is whether or not Ex-Sergeant Mafenya noted his appeal against discharge within the prescribed time frame?</p> <p>Both applicants seek a declaratur as their relief.  Section 14 of the High Court Act (Chapter 27:06) provides as follows:</p> <p>“The High Court may, in its discretion at the instance of any interested person enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination”.</p> <p>            In <em>Mpukuta</em> v <em>Motor Insurance Pool &amp;Ors</em> 2012 (1) ZLR 192 (H) at p192E – G, this court per NDOU J held that:</p> <p>“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person in the sense of having direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court.  The interest must relate to an existing future or contingent right.  The court will not decide abstract academic or hypothetical questions unrelated to such interest.  That is the 1st stage in the determination of the court.  At the second stage of the enquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under s14 of the High Court Act (Chapter 7:06).  In this regard, some tangible and justifiable advantage in relation to the applicant’s position, with reference to an existing future or contingent legal right or obligation, must appear to flow from the grant of the declaratory order”.  See also <em>Munn Publishing (Pvt) Ltd</em> v <em>ZBC </em>1994 (1) ZLR 387 (S).</p> <p>            Applying the law to the facts, I find that both applicants as ex-employees have a direct and substantial interest in the lawfulness or otherwise of their dismissal.  In my view, the applicants’ cases pass the 1st stage of the inquiry.</p> <p>            In respect of the 2nd stage, the initial question is whether there exists some “tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent right or obligation that appear to flow from the grant of the declaratory order sought”.  In order to answer this question, I must turn to the merits of the applications.  I shall deal with the 3rd issue first, namely whether or not Ex-Constable Mafenya’s appeal was properly filed.  The appeal procedure is set out in section 15 (1) of the Police (Trials and Boards of Inquiry) Regs 1965.  The section provides;</p> <p>            “15(1)  A member who wishes to appeal in terms of s51 of the Act shall:</p> <ul> <li>Within twenty-four hours of being notified of the decision of the Commissioner General of Police, give notice to his Officer Commanding of his or her intention.</li> <li>Within seven (7) days of being notified of the decision of the Commissioner General of Police, lodge with him or her officer commanding a notice of appeal in writing setting out fully the grounds upon which his or her appeal is based and any argument in support thereof.</li> <li>Upon receipt of a notice given in terms of paragraph (a) of subsection (1) the member’s superior officer shall notify the Chief Staff Officer (Police) by the most expeditious means.” (my emphasis)</li> </ul> <p>In the present case the applicant properly gave notice of his intention to appeal through his officer in charge.  However, applicant failed to give notice of appeal and grounds thereof in writing to his officer commanding in accordance with s15 (1) (b) <em>supra.</em>  This is fatal to his appeal because the provision is peremptory in that compliance is mandatory.  In his founding affidavit Constable Mafenya concedes that he filed his grounds of appeal with the 2nd respondent on 14 November 2016.  Failure to comply with the provisions of section 15(1) of the regulations renders the appeal a nullity.</p> <p>Section 51 of the Police Act (Chapter 11:10) states:</p> <p>“51.     Appeal</p> <p>A member who is aggrieved by any order made in terms of section forty-eight or fifty may appeal to the Police Service Commission against the order within the time and in the manner prescribed and the order shall not be executed until the decision of the Commissioner had been given”. (my emphasis)</p> <p>            <em>In casu</em>, Ex-Constable Mafenya did not comply with this section by not filing his appeal “in the manner prescribed”.  In my view, the 1st respondent was not obliged to invoke the provisions of section 51 where like in the present case the applicant has filed a defective appeal.  In other words, the 1st respondent was not notified of the appeal through the proper legal channels.  In the circumstances the respondents’ failure to reinstate Constable Mafenya is not a gross violation of the law.</p> <p>            As regards the 1st issue both applicants have contended that they were not furnished with reasons for the dismissal of their appeals by the 2nd respondent. The precise argument is that the 2nd respondent violated section 68 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (the Constitution).</p> <p>            The section provides:</p> <p>            “68.     Right to administrative justice</p> <ol> <li>Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable proportionate, impartial and both substantively and procedurally fair.</li> <li>Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.</li> <li>…” (my emphasis)</li> </ol> <p>Both applicants submitted that they verbally requested to be furnished with reasons for the decision to dismiss their appeals but none were supplied.  The 2nd respondent denied receiving such request from the applicants.</p> <p>In <em>Commissioner South African Police Service and Ors</em> v <em>Maimela &amp; Anor</em> 2003 (S) SA 450T, DU PLESSSIS J while interpreting a similar provision in the South African Constitution, held that;</p> <p>“When interpreting section 33 (c) of the Constitution, it must be borne in mind that the right to be furnished with reasons is very wide, it applies to every person whose right or interests are affected by any administrative action.  In many instances the persons affected may not be interested in the reasons.  The practical interpretation of section 33(c) is that reasons must be furnished to affected persons who assert the right to be furnished with reasons.  The purpose of section 33(c) is not to oblige administrative decision-makers to furnish without a request, reasons from every single administrative action taken in this country”. (See Klaaren (in Chaskalson &amp; Others Constitutional Law of SA (Revision Services, 1999) at 25-19). (my emphasis)</p> <p>            In <em>Mahachi &amp; Ors</em> v <em>Officer Commanding Matabeleland South Province &amp; Anor</em> HB-146-16, it was held that;</p> <p>“It is my considered view that section 68 gives a person a right to prompt and written reasons for any administrative action taken. It therefore follows in my view that where administrative action is taken, and a party is adversely affected by it, he has a right to request for and be promptly supplied with written reasons.  I do not hold the view that an affected party should sit back, and not ask for reasons only to say the decision is unfair as no reasons were provided.  Section 68 of the Constitution of Zimbabwe simply endorsed and incorporated into the Supreme Law of the land, the provisions of the Administrative Justice Act [Chapter 10:28].</p> <p> </p> <p>In my view, the Administrative Justice Act <em>(supra) </em>is an act of Parliament that compliments the provisions of section 68 of the Constitution.  It actually provides in its preamble as follows:</p> <p>“To provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair, to provide for the entitlement to written reasons for administrative action or decisions----.”</p> <p> </p> <p>Section 3(1) (b) of the same Act provides thus:</p> <p>“An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall ---</p> <p>(c)        where  it has taken the action, supply written reasons therefore within the relevant period specified by law, or if there is no such specified period after being requested to supply reasons by the person concerned.”</p> <p> </p> <p>       What comes out from the above provisions is that the affected person must 1st request for reasons of a decision before the decision-maker can be deemed to have failed to comply with section 68 <em>supra.  In casu</em>, both applicants have simply proffered bold and unsubstantiated claims that they verbally requested for reasons.  I remain unconvinced that a verbal request can be effectively made to an institution like the 2nd respondent.  Applicants have the onus to prove that they requested for reasons and none were forthcoming.  Both have dismally failed to discharge the onus in that they have not identified the person to whom their requests were made.  They have not supplied the place or date when such requests were made.  I do not share the view that in terms of the Constitution, the applicants are entitled to be furnished with reasons even without the need to request for same.  I come to the conclusion that the applicants did not request for reasons and the respondents’ failure to furnish reasons for their decisions does not make those decisions null and legally untenable.</p> <p>            Finally, both applicants contended that the 2nd respondent’s commission is not properly constituted as is required by section 227 of the Constitution.  The argument here is that the 2nd respondent was not appointed by the President making the whole commission unconstitutional.  In my view this matter was not fully argued and the information supplied is so scanty that I am unable to decide one way or the other.  Applicants may file an application with the Constitutional Court if they so wish.</p> <p>            In the circumstances, I find that the applications have no merit.  Accordingly, I make the following order.</p> <p>            Both applications be and are hereby dismissed with costs.</p> <p> </p> <p><em>Mugiya &amp; Macharaga Law Chambers</em>, applicants’ legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, 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/bulawayo-high-court/2019/1/2019-zwbhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24845">2019-zwbhc-1.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/2019/1/2019-zwbhc-1.pdf" type="application/pdf; length=142711">2019-zwbhc-1.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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-application">Declaratory application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fair-hearing">Fair hearing</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules">rules of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/decision-statutory-authority">decision of statutory authority</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/police">POLICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/discipline-police">Discipline (POLICE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-force">dismissal from force</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/bulawayo-high-court/2016/146">Mahachi &amp; Others v Officer Commanding Matabelelend South Provinve N.O. &amp; Another (HB 146-16 HC 750-16 XREF HC 765-16) [2016] ZWBHC 146 (09 June 2016);</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/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</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 class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Thu, 28 Feb 2019 09:24:08 +0000 admin 9282 at https://old.zimlii.org S v Nyamuri (HH 614-18, CRB CNC 281/18) [2018] ZWHHC 614 (03 October 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/614 <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>KRYONA NYAMURI</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TSANGA &amp; CHITAPI JJ</p> <p>HARARE, 3 October 2018</p> <p> </p> <p> </p> <p><strong>Review Judgment</strong></p> <p> </p> <p> </p> <p> </p> <p>            CHITAPI J: The accused was convicted of theft as defined in section 113 (1) (a) of the Criminal Law Codification and Reform Act, [<em>Chapter 9:23</em>].  She was convicted on 7 March 2018 by the magistrate at Bindura.</p> <p>            The facts of the matter in brief were that the accused a 27 year old female adult and the complainant, a 31  year old female adult were aunt and niece. They resided together at their house at Masasa Farm Mazowe. On 16 February, 2018 the complainant left the house and went about her business.  The accused remained at the house.  The accused took advantage of the complainant’s absence and stole the complainant’s property which comprised, cash of $450.00, a phone and some clothing items.  The total value of the cash and property was put at $575.00.  The accused went away to her rural house and consumed the property with the result that nothing was recovered.</p> <p>            The accused pleaded guilty to the offence following her arrest and arraignment before the court. When the essential elements were put to her, the complainant was asked what she wanted to do with the property.  In response the accused said that she took the property as recompense for her unpaid salary.  When asked as to who was paying her salary, she responded that it was the complainant and that she was employed by the complainant as her maid. The magistrate retained a guilty verdict despite the accused’s explanation.</p> <p>            In the case <em>State</em> v <em>Zondiwe Ncube</em> HB 14/15, a review judgment of Takuva J which judgment Mutema J agreed with, the accused had been tasked to ferry 4 heifers belonging to the complainant to an agreed destination. The accused and complainant were brother and sister.  The accused drove away the 4 heifers belonging to the complainant and transported them to some other place and the heifers were not recovered.  On arraignment to answer a stock theft charge, the accused pleaded guilty.  When the essential elements were put to her and she was asked in mitigation as to why she acted as she did, she responded, “I took the cattle with an intention to recover a debt owed by the complainant. The complainant owed me $1 454.00 and I thought of recovering my money from the cattle.  My brother (complainant) kept on changing goal posts.” The magistrate did not alter the plea in the light of the accused’s explanation for her conduct. The conviction was however set aside on review and the court was directed to alter the plea to not guilty and conduct a full trial.</p> <p>            In the said judgment, Takuva J had this to say;</p> <p>            <em>“</em><em>In respect of property crimes, such as theft, robbery or malicious damage to property, the court should always investigate whether the accused committed the crime under any sort of claim of right.  A claim of right is a “decently clothed”</em><em> ignorance or mistake of law. Such an ignorance or mistake of law is said to be clothed where the accused either knows or suspects that his actions would normally be illegal but due to some extraneous factual basis, he believes  that his actions will not be unlawful in present circumstances</em>.</p> <p>“Where there is doubt as a result of this defence, the court should alter the plea to one of not guilty in order to determine the contentions issues. The rationale for this principle is to ensure that there is a fair trial especially where an accused is unrepresented and for where the case involves a mandatory sentence …” see <em>S </em>v <em>Kawocha </em>SC 22/92 and <em>S </em>v <em>Chirodzero </em>HH 14/88.”</p> <p>I would add that mistake or ignorance of fact as a defence is provided for under ss 232-234 of the</p> <p>Criminal Law Codification and Reform Act. Significantly, mistake is defined as “<em>mistake in relation to a fact means an erroneous impression concerning the fact.”</em> Mistake or ignorance of fact grounds a complete defence to a charge where its requirements are met. Equally, it is so with mistake or ignorance of law. Sections 235-237 provide that if the requirements set out in those sections are proved, mistake or ignorance of law grounds a full defence. Where the accused facing a crime against property pleads the defence of claim of right, the court is required to determine the veracity of the defence as provided for in s 237 of Criminal Law Codification and Reform Act. </p> <p>            The magistrate <em>in casu</em> did not deal with the claim of right defence raised by the accused. The failure to do so amounted to a misdirection which resulted in a substantial if not complete miscarriage of justice. The conviction of the accused cannot be left to stand and must be set aside. The accused having been sentenced to an effective 12 months imprisonment on 7 March, 2018 has served almost 6 months of the sentence. Given a possible one third of remission of sentence for good behaviour normally given to convicts, the 6 months would equate to a 9 month sentence before remission.</p> <p>            What also presents itself as worrisome is the total sentence which was imposed. 24 months for theft of property worth $575-00 is shockingly and disturbingly excessive. The magistrate imposed a sentence which was the maximum of her ordinary jurisdiction on summary trial as provided for in s 50 (1) (a). There was just no justification for this. The magistrate did state that a fine would trivialize the offence but did not consider community service and dismiss it as inappropriate. Therefore, even if the conviction had been upheld, the sentence would have been set aside and substituted.</p> <p>            I would have considered a remittal of the case for a full trial on a plea of not guilty as being justiciable. However, to do so would mean that the accused who has already served a sentence which by all objective and subjective considerations is disturbingly severe would remain on remand pending trial. Under the circumstances, a justiciable order should be one that sets aside both the conviction and sentence and leave the decision whether or not to reinstitute a fresh prosecution to the Prosecutor General.</p> <p>            In consequence therefore, I make the following order.</p> <ol> <li>The proceedings in case No. CNC 281/18 do not accord with real and substantial justice.</li> <li>The conviction and sentence imposed on the accused are set aside and the accused must be released from prison forthwith.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p>Tsanga J agrees…………………………..         </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/2018/614/2018-zwhhc-614.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19215">2018-zwhhc-614.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/2018/614/2018-zwhhc-614.pdf" type="application/pdf; length=159500">2018-zwhhc-614.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/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/theft">Theft</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-and-criminal-review">Civil and criminal 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/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 31 Oct 2018 07:50:13 +0000 admin 9128 at https://old.zimlii.org S v Kawodza (HH 616/18, CRB BNR 115/18) [2018] ZWHHC 616 (04 October 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/616 <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/2018/616/2018-zwhhc-616.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24483">2018-zwhhc-616.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/2018/616/2018-zwhhc-616.pdf" type="application/pdf; length=134598">2018-zwhhc-616.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/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape">Rape</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rape-sentence">Rape (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/factors-affecting-sentence">Factors affecting (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/matters-which-court-may-take-account-sentence">Matters which court may take into account (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/youthful-offenders">Youthful offenders</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-and-criminal-review">Civil and criminal review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</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/2016/47">S v Banda; S v Chakamoga (CRB GVE 644/15, CRB Mhw 450/15, HH 47-16) [2016] ZWHHC 47 (20 January 2016);</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/1931/18">Magistrates Court Act [Chapter 7:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><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, 31 Oct 2018 07:13:33 +0000 admin 9126 at https://old.zimlii.org S v Hondo & Another (HB 183/18, HCAR 966/18 Ref CRB BYO P1369A-B/18) [2018] ZWBHC 183 (05 July 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/183 <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>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>NOMORE HONDO</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>DANIEL MOYO</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 5 JULY 2018</p> <p> </p> <p><strong>Criminal Review</strong></p> <p>            <strong>MAKONESE J:        </strong>The two accused persons appeared before a Provincial Magistrate at Tredgold facing allegations of contravening section 125 (a) of the Criminal Law Codification &amp; Reform Act (Chapter 9:23); being found in possession of property reasonably suspected of being stolen.  The accused persons tendered pleas of guilty.  They were duly convicted and sentenced to 8 months and 5 months imprisonment respectively.</p> <p>            The scrutinizing Regional Magistrate raised a query with the court <em>a quo</em>, indicating that it was not proper for the learned magistrate to accept a guilty plea in cases involving receiving of stolen property, without receiving evidence on whether or not the accused had the requisite intention to commit the offence.</p> <p>            The brief facts of the matter as gleaned from the outline of the state case are as follows.  On the 6th of May 2018 around 0130 hours and at corner George Silundika and 8th Avenue, Bulawayo, police officers from Bulawayo Central Crime Prevention Unit were on patrol.  The police officers spotted the two accused persons who were walking along George Silundika Avenue, ladden with an assortment of goods.  The police officers requested to search the accused persons.  Accused one was found in possession of a Remington hair clipper, Remington hair cut video tape, 6 car modulators, a Huawei Y 220 cellphone, 2 auto lamp holders, 1 pair of reflectors and tools, a bag, a timing belt, 27 spanners of different sizes, 13 screw drivers of different sizes, 3 pliers, a hammer and various other scrap materials suspected to be stolen.  Accused two was in possession of empty 10 litre containers, yellow jerry can, pair of reflectors, 2 caps and other scrap materials.  The two accused persons were asked to account for the property and they failed to give a satisfactory explanation of the source and origin of the property in their possession.  The total value of the property in their possession was US$408.  The accused persons were arrested and taken to court on allegations of being found in possession of property suspected of being stolen.</p> <p>            Section 125 (a) of the Criminal Codification and Reform Act is a re-enactment of section 12 (2) (b) of the Miscellaneous Offences Act (Chapter 9:15).  The learned magistrate in the <em>court a quo</em> proceeded in terms of section 271 (2) (b) of the Criminal Procedure and Evidence Act (Chapter 9:07).  Having read and explained the essential elements of the charge to the accused persons, both accused indicated that they understood them.  The magistrate then put the following questions to accused one;</p> <p>            “Q       Correct on 6 May 2018 around 0130 hours you were at corner George Silundika Street and 8th Avenue, Bulawayo.</p> <p> </p> <p>            A         Yes</p> <p> </p> <p>Q         Correct you were approached by police officers who were on patrol?</p> <p>A         Yes</p> <p> </p> <p>Q         Correct you were searched and found in possession of Remington clipper, Remington hair video tape, a Huwei cellphone Y 220, tool bag with 27 spanners of different sizes, 13 screw drivers, 3 pliers, a hammer and various scrap materials?</p> <p> </p> <p>A         Yes</p> <p> </p> <p>Q         Were did you get all the property?</p> <p> </p> <p>A         City hall, we picked the property</p> <p> </p> <p>Q         Correct your possession of the property raised a suspicion that you had stolen the property?</p> <p>A         Yes</p> <p> </p> <p>Q         Any defence to tender?</p> <p> </p> <p> </p> <p>A         None</p> <p>Q         Is your plea a genuine admission of the charge and facts and essential elements?</p> <p> </p> <p>A         Yes</p> <p> </p> <p> </p> <p>Verdict Guilty as charged”</p> <p>            The same procedure was adopted by the trial magistrate in respect of the second accused.  He was also convinced on his own plea of guilty.  It was upon these facts and answers solicited from the accused persons that the accused were convicted and sentenced.  It is abundantly obvious that the explanation as to how the accused had come into possession of the property suspected of having been stolen was not enquired into.  It was necessary to call the police who effected  the arrest to lead evidence of the circumstances that gave rise to their suspicion that the goods were stolen.  The accused persons told the police that they had “picked” the property at City Hall.  There was a need to rebut this defence and to prove the essential elements of the offence.  The essential elements relate to the reasonable suspicion that the property was stolen.  The accused persons were nevertheless convicted as charged.  In mitigation, accused one conceded that he had relevant previous convictions relating to unlawful entry and theft.  The trial magistrate proceeded with the sentencing of the accused person without enquiring into whether the essential elements had been proved and established.</p> <p>            In matters relating to contravention of section 125 (a) of the Criminal Law Codification and Reform Act the following essential elements must be proved:</p> <ol> <li>Possession of property capable of being stolen</li> <li>Circumstances of his or her possession such as to give rise either at the time of his or her possession or at any time thereafter to a reasonable suspicion that when he or she came into possession of that property it was stolen.</li> </ol> <p>Proof of knowledge that property was stolen may be:</p> <ul> <li>Direct, e.g. testimony given by the thief which is corroborated; or</li> <li>Indirect, e.g. reliance upon a number of suspicious factors which may assist in proving intention such as:</li> </ul> <ul> <li>the accused was found in possession at an unusual time and place;</li> <li>the accused was found in possession of such property in suspicious circumstances and was unable to give a satisfactory account of the possession.</li> </ul> <p>See <em>A Guide to the Criminal Law</em> by G. Feltoe at page 125.</p> <p>            In this matter, it is the police officer who must have seen that something was amiss about the accused persons’ possession of the property.  Such is within the police officers’ knowledge and the accused persons could not testify on behalf of the arresting detail.  The accused persons had no knowledge of how the police arrived at the conclusion that there was a reasonable possibility that the goods were stolen.  These are essential elements that are not within the accused’s knowledge and therefore any admission of these elements by the accused would not be of much value.  See <em>S </em>v <em>Gaviyaya</em> 2008 (2) ZLR 159 (H), where the learned judge had occasion to deal with a similar matter.</p> <p>            Such essential elements are in the class of elements noted by DUMBUTSHENA CJ in <em>S</em> v <em>Dube &amp; Anor</em> 1988 (2) ZLR 385 (S) when he remarked at page 390A as follows:</p> <p><em>“Not every fact should be regarded as proved simply because it is admitted.  Thus an admission of “being in a prohibited area” should not be blindly accepted.  The court should require proof that the area was indeed a prohibited area.  See S v Deka &amp; Anor S-199-88.  The same is true of an admission of “possession”.  The court must be careful to establish what it is that the accused is admitting because possession is a difficult concept.”</em></p> <p> </p> <p>            In <em>S</em> v <em>Chiwondo</em> 1999 (1) ZLR 407 (H) at page 415-15, CHATIKOBO J had this to say in a similar matter:</p> <p><em>“it would be absurd to ask an offender in plea proceeding if he admits that there was a reasonable suspicion that the goods found in his possession had been stolen.  It is not the accused who suspects himself.  The suspicion is formed by a third person, normally a police officer.  It is such a person harbours the suspicion.  He is who assesses the circumstances under which he finds the accused in order to determine if the suspicion harboured by him is reasonable.”</em></p> <p>            In the circumstances of this case, the accused told the arresting detail that they had picked the property in question at the City Hall.  It was imperative for the trial court to conduct a short trial, put the police officer on the stand and ask him how and why he arrested the accused persons.  The accused’s defence would have been put to the test and the court would then have come up with an informed decision as to whether the accused persons had sufficiently explained their possession of the property.</p> <p>            In all the circumstances, there was no evidence to satisfy the court that the essential elements of the offence had been satisfied.  The learned trial magistrate has conceded that it was not proper to accept the plea of guilty without proceeding to trial.</p> <p>            In the result, and accordingly, the conviction was not proper and cannot be allowed to stand.  The conviction and sentence are hereby set aside.</p> <p>            The matter be and is hereby referred to the court a quo for a trial <em>de novo</em>.</p> <p> </p> <p> </p> <p>                                    Mabhikwa J ………………………………. I agree</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/2018/183/2018-zwbhc-183.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22323">2018-zwbhc-183.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/2018/183/2018-zwbhc-183.pdf" type="application/pdf; length=135800">2018-zwbhc-183.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/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/guilty">guilty</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleas-open-accused">pleas open to accused</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (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/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></div> Tue, 07 Aug 2018 14:12:57 +0000 admin 9091 at https://old.zimlii.org Matengu v The Independant Tribunal & 5 Others (HB 146/17, HC 1065/17) [2017] ZWBHC 146 (08 June 2017); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2017/146 <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>REUBEN MATENGU</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE INDEPENDENT TRIBUNAL</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>HILDA MAKUSHA MOYO N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>MIDARD KHUMALO N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>LUCY MANHOKWE N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE MINISTER OF LOCAL GOVERNMENT,</strong></p> <p><strong>PUBLIC WORKS &amp; NATIONAL HOUSING N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>BULAWAYO CITY COUNCIL</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>BERE J</p> <p>BULAWAYO 18 MAY &amp; 8 JUNE 2017</p> <p> </p> <p><strong>Unopposed Application for Review</strong></p> <p> </p> <p><em>K. Ngwenya</em> for applicant</p> <p>            <strong>BERE J:</strong>         This application for review has been made in terms of sections 26, 27 and 28 of the High Court Act1 as read with section 114 (1) (c) of the Urban Councils Act.2</p> <p> </p> <ol> <li>Chapter 7:06</li> <li>Chapter 29:15</li> </ol> <p>            The background to this case can be summarised as follows: The applicant was a councilor for Ward 21, Bulawayo City Council. The allegations against the applicant were that after the applicant had acquired a residential stand with Bulawayo City Council he immediately sold it to a third part before he had even paid for it in contravention of clause 17 of the agreement of sale between himself and Bulawayo City Council.</p> <p>            In response to these allegations the applicant denied violating the clause in question and stated that he had acted above board in disposing of the stand in question.  The applicant’s position was that he sought for and obtained the authority of the Director of Housing for Bulawayo City Council before he sold the stand.</p> <p>The conduct of the applicant culminated in him being brought before an Independent Tribunal set up by the parent Ministry <em>viz</em> Ministry of Local Government, Public Works &amp; National Housing in order to deal with the allegations levelled against the applicant.</p> <p>Pursuant to the hearing that followed which consisted of <em>inter alia</em> the recording of <em>viva</em> <em>voce</em> evidence and the tendering of documentary exhibits, the Independent Tribunal found the applicant guilty of misconduct as a consequence of which the applicant was evicted from his position as a councilor of Bulawayo City Council.  The Independent Tribunal gave a thorough assessment of the evidence that was presented to it in order to support its findings.</p> <p>Aggrieved by the findings of the Tribunal, the applicant lodged this application for review.</p> <p>For some reason, despite having been duly served with this application for review all the respondents did not respondent to it resulting in this matter being set down for hearing on the unopposed roll.</p> <p>A closer look at the complaint being raised by the applicant in his review application is simply that the tribunal arrived at a decision which did not go down well with him.  In other words the applicant was aggrieved by the findings of the tribunal and not that there was any irregularity in the manner in which the decision was arrived at.</p> <p>Even during submissions in court, I put a pointed question to the applicant’s counsel who was quick to concede that his client (the applicant) was not alleging any irregularity in the manner the proceedings were conducted by the tribunal.  Counsel instead alleged that the application for review was prompted by what he termed as “gross unreasonableness” in the decision that was made against the applicant.</p> <p>This application in my view brings to the fore the need to recognize and maintain the distinction between review and appeal proceedings.  Quite often, litigants tend to confuse these two concepts.  The mere fact that the objectives of bringing an appeal or a review are basically the same i.e., to have the decision under attack set aside, does not on its own mean that these two concepts of our law are the same.  They remain miles apart and the distinction must always be observed to ensure that the correct remedial action is instituted.</p> <p>The position of the law in this regard is succinctly put by Herbstein and Van Winsen in the following:</p> <p>“The reason for bringing proceedings under review or an appeal is usually the same, viz to have the judgment set aside.  Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal.  Where, however, the real grievance is against the method of trial, it is proper to bring the case on review.  The first distinctions depend, therefore, on whether it is the result only rather the method of trial which is to be attacked.  Naturally the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.  The giving of a judgment not justified by the evidence would be a matter of appeal and not review upon this test.  The essential question in review proceedings is not the correctness of the decision under review, but its validity.”3</p> <p> </p> <ol> <li>The Civil Practice of the High Courts of South Africa, Fifth edition Volume 2, published by Juta at p 1271</li> </ol> <p> </p> <p>            MAKARAU J (now JA) could not have put it in any better way in the case of <em>Dombodzuku</em> <em>and Anor</em> v <em>Sithole NO &amp; Anor</em>4 when she remarked:</p> <p>“As observed in <em>Oskil Properties</em> v <em>Chrman, Rent Control Board</em> 1985 (2) SA 234 (SEC), the onus resting upon a litigant to set aside the exercise of a discretion on grounds of unreasonableness is considerable.  In my view, the task is Herculean if it is an interpretation of the law by a judicial officer that is sought to be impugned as being unreasonable. An incorrect rendition of the law cannot be grossly unreasonable merely because it does not find favour with its attacker.  The person attacking it must go further and show that on the facts before the court, the decision reached defies all logic and is completely wrong.  A different, opinion of the law, clearly showing how it was arrived at cannot be said to defy logic.  It may be wrong but may not necessarily be unreasonable.”4</p> <p>            I am quite aware that in the matter that I am seized with, the decision whose review has been sought was not a decision of a judicial officer but that of a quasi-judicial body in the form of a tribunal.  Despite this, I am certain the observations by the learned Judge in <em>Dombodzvuku (supra)</em> would apply with equal force.</p> <p>            I have had the privilege of going through the decision of the tribunal in the instant case.  The sound reasoning in that decision is unmistakable.  It involved what I would refer to as a thorough assessment of the material that was placed before the tribunal.  The logic or the reasoning process that the tribunal engaged in as it moved towards the determination of the matter is clearly laid out in the record of proceedings.  It is there for all to see.  The decision may be wrong (which sentiment I do not share) but clearly it is outside the purview of review.</p> <p>            It is noted in this case, and as has become customary in similar cases that in a desperate attempt to make an unreviewable case fit within the ampit of review proceedings the terms “grossly irregular” and “grossly unreasonable” are thrown into the body of the applicant’s founding affidavit.  But alas! A reading of the whole record of proceedings does not support this characterization of the proceedings.</p> <p> </p> <ol> <li>2004 (2) ZLR 242 (H) at 246B-C</li> </ol> <p>            The inevitable conclusion that I arrive at is that the applicant has used a wrong procedure to have the decision of the tribunal set aside.</p> <p>            The application is accordingly dismissed with costs.</p> <p> </p> <p><em>T.J. Mabhikwa &amp; Partners</em>, applicant’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/bulawayo-high-court/2017/146/2017-zwbhc-146.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18783">2017-zwbhc-146.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/2017/146/2017-zwbhc-146.pdf" type="application/pdf; length=86501">2017-zwbhc-146.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/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">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/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div></div></div> Fri, 13 Jul 2018 07:17:05 +0000 admin 8973 at https://old.zimlii.org Mamutse & Anor v Tichareva & 5 Others (HH 258-18, HC 8779/17) [2018] ZWHHC 258 (15 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/258 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>RICHARD MAMUTSE</p> <p>and</p> <p>PINIEL MAMUTSE</p> <p>versus</p> <p>ISAAC TICHAREVA</p> <p>(In his capacity as the Executor of the Estate of the Late</p> <p>SHINGIRAI MAMUTSE)</p> <p>and</p> <p>THE MASTER OF THE HIGH COURT</p> <p>and</p> <p>HEATHER DANAI MATIMADIYI</p> <p>and</p> <p>TENDAI PRINCE HILLARY MATIMADIYI</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUNANGATI-MANONGWA J</p> <p>HARARE, 15 May 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Matter</strong></p> <p> </p> <p> </p> <p><em>Ms L Gaba</em>, for the applicants</p> <p><em>Mr E Ngwerewe</em>, for the respondents</p> <p><em>Mr R Zimudzi </em>for 3rd and 4th respondents</p> <p> </p> <p><strong><em>EX TEMPORE JUDGMENT</em></strong></p> <p> </p> <p>            MUNANGATI-MANONGWA J: The applicants who are siblings approached this court seeking a declaratory order <em>viz</em> the estate of their deceased mother on the following terms:</p> <ol> <li>The sale and transfer of the immovable property described as Stand 1249 Rugare Township, Harare to the 3rd and 4th respondents is null and void and consequently set aside.</li> <li>The 5th respondent should give effect to the provisions of Paragraph 1 and restore the property back into its previous owners’ name.</li> <li>In the interim, pending the finalisation of the Estate, the Court Order obtained in HC10668/16 against the applicants be and is hereby suspended.</li> <li>The 1st respondent pays costs of this application on an Attorney-client scale</li> </ol> <p>            The application is opposed by the first respondent who is the Executor of the estate of the Late Shingirai Mamutse, and the third and fourth respondents a couple that purchased the only asset of the estate stand 1249 Rugare Township Harare. Suffice to state that the third and fourth respondents already hold title to the property.</p> <p>            The grounds upon which the applicants rely for seeking the aforementioned relief are listed in paragraph 25 of the founding affidavit under the heading “Declaratur” and are that:</p> <p>“(a)      the executor had sold the immovable property to the third and fourth respondents “precipitously” without their consent and “for debts that were not even due and payable.”</p> <p> </p> <p>(b)        “that the first respondent acted capriciously in selling the property at grossly undervalued purchase price thereby prejudicing the estate and the beneficiaries of more than US$10 000-00.</p> <p> </p> <p>(c)        other factors like greed and avarice seem to have motivated the actions of the first respondent.”</p> <p> </p> <p>It is the applicant’s contention that the aforementioned grounds point to a conflict</p> <p>between their interests and those of the Executor and the Master of High Court which therefore removes the matter from the realm of an ordinary appeal or review.</p> <p>            In opposition the first respondent raised a point <em>in limine</em> that the applicants have used a wrong procedure, instead of applying for a declaratur an application for a review would have been appropriate. This is a clandestine attempt to seek a review of the Master’s decision via the back door by disguising same as an application for a declaratur.</p> <p>            The third and fourth respondents raised several grounds in opposition including points <em>in limine. </em>At the hearing Mr Zimudzi abandoned the points. The simple facts of this case are. The late Shingirai Mamutse died intestate leaving stand No 1249 Rugare Township as the only meaningful asset. The first respondent was appointed neutral executor and proceeded to handle the estate. The estate had obligations amounting to US$4 404.00 consisting of electricity bills and City of Harare rates. The applicants raised an amount of US$640.00.  The first respondent applied to the second respondent for authority to sell the immovable property to meet the estate’s obligations, same was granted and the property was sold to third and fourth respondents. The latter now hold title to the property.</p> <p>            It is common cause that the applicants applied for a review in Case No. HC 6902/16 seeking the setting aside of the sale on the basis that the sale was irregular. The application was dismissed with costs on 1 June 2017. Equally there is an extant order granted on 18 July 2017 against the applicants who then were respondents in Case No. HC 10668/16 which ordered that the applicants vacate stand 1249 Rugare Township within 48 hours of the order and pay rentals from the date of institution of the summons to the date they vacate the property. It is common cause that applicants have not complied with this order.</p> <p> Of note is the fact that the applicants have projected the notion that it is the Master’s decision to authorise the sale that is being impugned. Yet a look at the grounds that have been provided clearly attack the manner in which the Executor has disposed of the property. There are barely any details regarding the allegations against the Master being the second respondent. Ms Gaba for the applicant submitted that the applicants were not consulted by the first and second respondents in the whole process leading to disposal of the property. Evidence on the papers shows that there was exchange of information by way of letters being written to the applicants.</p> <p>As the basis of the application is to challenge the Master’s decision a review would have been the appropriate application see <em>Geddes</em> v <em>Tawonezvi</em> 2002 (1) ZLR 479. A reading of the present application shows that the issues raised are the same ones raised in the review matter Case No. HC 6902/16. Even the relief sought is essentially the same, being the setting aside of the sale of the immovable property. Central to both applications is a complaint against the manner in which the executor conducted the sale or disposed of the estate’s asset. The parties are the same, the same grounds are relied upon and so is the relief sought. Clearly there is an attempt to disguise this application as something different from the previous one by calling it an application for a declaratur, but such efforts proved dismal.</p> <p>                        That the application is a review in disguise is confirmed by the concession by Ms Gaba that a review would have been out of time and seeking condonation would have delayed justice as the third and fourth respondent would have dealt with the property as they wished. In that regard to protect the interests of the applicants they had to ask for a declaratur.</p> <p>            Since the initial review proceedings were thrown out on technicalities the issue of <em>res judicata</em> would not arise. The applicants could have applied for condonation and started the whole process again. Given the aforegoing the applicants got mixed up <em>viz</em> the grounds relied upon in an attempt to have the application fit the requirements of a declaratur. In the process a wrong procedure was adopted. Consequently the application cannot succeed.</p> <p>            Apart from that finding, the application cannot succeed on merits. The applicants are indeed beneficiaries to their mother’s estate together with their other siblings. It is common cause that they were given time to raise the US$4 404.00 which was required to pay obligations due by the estate. The applicants only raised $640.00. The executor sought the Master’s consent to sale and there is no evidence that the Master decision can be faulted in view of the fact that the applicants had been given time to raise the amount and failed to do so. The master and the executor did not require the beneficiaries to consent to the sale. That they were engaged to raise what was due is sufficient. The requirements of s 120 of the Administration of Estates Act were satisfied. Disposal of assets falls in the hands of the executor upon due authority from the Master. (See <em>Dondi N.O</em> v <em>Muganhiri &amp; Ors</em> HH 77/15). Hence nothing was untoward viz the actions of the first and second respondents. Whilst there is an allegation that the property was grossly undervalued, no evidence was furnished by the applicants by way of a valuation to show what would have been a fair value for the property. Again no evidence supports the allegation that “greed and avarice” motivated the actions of the first respondent, the executor. US$4 404 was outstanding as an obligation against the estate and the estate only had one asset being an old house in a high density suburb with cracks on the front elevation (as <em>per</em> the valuation report). Faced with beneficiaries who could not raise the amount, coupled with five other beneficiaries who supported the sale in order to get their shares, the first respondent was within his mandate to seek consent from the 2nd respondent to dispose the asset. The consent was properly granted in the circumstances and the court finds nothing untoward in the manner the sale proceedings were conducted to declare them null and void.</p> <p>            Equally the interim relief sought in the draft order to suspend the court order in HC 10668/16 which granted the eviction of applicants from the property in issue is not competent. This application is for a declaratur hence the application for an interdict is misplaced. Neither is there a legal basis to grant such relief in the absence of a pending review or an appeal let alone a proper application. I find that this application was ill-thought, reckless and constitutes an abuse of court process.</p> <p>Accordingly the application is dismissed with costs on an attorney and client scale.</p> <p><em>Takawira Law Chambers</em>, plaintiff’s legal practitioners</p> <p><em>Zimudzi &amp; Associates, </em>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/2018/258/2018-zwhhc-258.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21622">2018-zwhhc-258.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/2018/258/2018-zwhhc-258.pdf" type="application/pdf; length=122990">2018-zwhhc-258.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/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/executoradministrator-deceaseds-estate">Executor/Administrator of deceased&#039;s estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duties">duties of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/master-high-court">Master of the High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-order">Declaratory order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-review">Condonation (Review)</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/2015/77">Dondo N.O. v Muganhiri &amp; Others (HC 9920/13) [2015] ZWHHC 77 (28 January 2015);</a></div></div></div> Mon, 25 Jun 2018 07:27:42 +0000 admin 8937 at https://old.zimlii.org S v Mapani (HH 263-18, CA 881-10) [2018] ZWHHC 263 (23 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/263 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>GIFT MAPANI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>HUNGWE &amp; MUSHORE JJ</p> <p>HARARE, 28 March 2018 &amp; 23 May 2018</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p>MUSHORE J: This is an appeal matter in which we reserved judgment in order to consider whether the concession which was made by the State held merit.</p> <p>Having read the record of evidence again together with my notes and the parties’ Heads of Argument, it is my belief that this is a straight contractual dispute</p> <p>The State’s case was poor given the fact that it was a single witness case. Why I say so is that complainant’s son should have been called to testify because he is the one who negotiated the contract with the appellant. As such, complainant’s evidence as to what was agreed regarding the transaction is hearsay. (see p 25).</p> <p>Page 26 record.</p> <p>            “Cross examination of complainant</p> <p>            Q.        Did you go to accused with your car initially?</p> <p>            A.        No I didn’t</p> <p>            Q.        When did you take your car?</p> <p>            A.        On 9/07/09, 8.30</p> <p>            Q.        When did you first met with accused?</p> <p>            A.        That’s my first time, it was my son who negotiated for the price.”</p> <p>Accordingly the conviction <em>a quo</em> is unsafe. </p> <p>The concession made by the State in terms of s 35 of the High Court Act [<em>Chapter 7:09</em>] was properly made.</p> <p>In the result:</p> <p>The conviction of the court <em>a quo</em> is quashed and substituted with a finding of “not guilty”. The sentence <em>a quo</em> is set aside.</p> <p>HUNGWE J: …………………………..</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/2018/263/2018-zwhhc-263.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=15427">2018-zwhhc-263.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/2018/263/2018-zwhhc-263.pdf" type="application/pdf; length=104089">2018-zwhhc-263.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/criminal-procedure">CRIMINAL PROCEDURE</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/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/reviewable-decision">Reviewable decision</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/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Wed, 20 Jun 2018 08:18:10 +0000 admin 8931 at https://old.zimlii.org Magodo & 2 Others v Chief Superintended Kezius Karuru (HH 276-18, HC 9742/17) [2018] ZWHHC 276 (16 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/276 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>LIBERTY MAGODO</p> <p>and</p> <p>TINEVIMBO MUZEZEWA</p> <p>and</p> <p>RICHARD BUZUZI</p> <p>versus</p> <p>CHIEF SUPERINTENDENT KEZIAS KARURU</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>HARARE, 16 May 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Application for review </strong></p> <p> </p> <p><em>Ms K. Hutchings</em>, for the applicants</p> <p>Ms. N.L Mabasa, for the respondent</p> <p> </p> <p>              MUZENDA J: The three applicants are police details who were charged in terms of paragraph 35 of the Schedule to the Police Act [<em>Chapter 11:10</em>] as read with paragraph 29 (A) (iii) of the same Act which reads:</p> <p>            “Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or      discipline or reasonably likely to bring discredit to the Police Force.”</p> <p>           </p> <p>            The three appeared for hearing on the 21st November 2014 before a single officer, the respondent, Chief Superintendent Kezias Karuru. The State led evidence from four witnesses and closed its case. On the 20th March 2017 the applicants jointly moved the trial officer through an application for a discharge at the close of the prosecution case in terms of section 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. The trial officer dismissed the application and ordered that the three be placed on their defence since the state had managed to prove a <em>prima facie</em> case against them. The trial officer in his ruling gave the applicants brief reasons for the dismissal of the application for discharge and indicated that he would provide detailed reasons after hearing the defence case in his final judgment. The applicants, then filed an urgent chamber application under case number HC 3198/17 for review on the same grounds outlined in this current application. Musakwa J ruled that the urgent chamber application brought by the three applicants was not urgent and he struck it off the roll of urgent chamber applications.</p> <p>            On the 19th October 2017 the three applicants filed this application seeking the following relief in the terms of the draft order attached to the application:</p> <p>            “1. The order of the court <em>a quo</em> is set aside and substituted with the following:</p> <p>            (a) the application for discharge at the close of the state case, be and is hereby granted,    1st, 2nd ` and 3rd accused be and are hereby acquitted.</p> <p> </p> <p>            Alternatively </p> <p> </p> <p>            2. First respondent be and is hereby directed to give reasons, for the ruling made on 7th April        2017 dismissing the application for discharge at the close of the state’s case within 10 days      of this order.</p> <p>            The application is opposed.</p> <p>            The following appears on the grounds for review</p> <p>            “(a) the decision of the respondent refusing to give reasons for dismissing applicants’      application for discharge at the close of the state’s case is grossly irregular.</p> <p>            (b) the respondent’s decision to refuse applicant’s access to the record of proceedings for purposes of seeking a review of the proceedings is grossly irregular.</p> <p>            (c) the respondent’s decision to dismiss the applicants’ application for discharge at the close of    the state’s case where there are inconsistencies in the state’s evidence is grossly irregular.”</p> <p> </p> <p>            These three grounds for review prominently appear in the applicant’s affidavits and paragraph 7 of first applicant’s founding affidavit contains the following extract.</p> <p>            “I refer this Honourable Court to page 53 of the record of proceedings where the following         transpired. Ruling application per discharge at close of state case……..</p> <p> </p> <p>            Having gone through the submissions by both defence and state counsel, as well as the record of proceedings, it is adjudged that the state has a <em>prima facie</em> case and the accused to be put to their          defence. A comprehensive reasoning for the ruling to be given in the judgment.</p> <p>            Court: While the state seems to concur that the reasons for the ruling be availed before we           proceed to the next stage of the trial. May parties be guided that the court has the right to hold    reasons for the main judgment as it has done where it may seem giving reasons at the moment is             not desirable. It suffices to say the state has a <em>prima facie</em> case and the accused have to respond to     the allegations. The requirement is that the court should provide reasons in the main       judgment as it has alluded to.”   [my emphasis].</p> <p> </p> <p>            The applicants’ further content that the trial’s action was grossly irregular for withholding his reasons for dismissing the application for discharge and cited section 68 (2) of the Constitution which provides thus:</p> <p>            “Section 62: any person whose right, freedom, interest or legitimate expectation has been            adversely affected by administrative conduct was the right to be given promptly and in       writing the reasons for the conduct.”</p> <p> </p> <p>            According to the applicants the duty by the trial officer to give reasons for this ruling is a Constitutional requirement and would also create an impression of fairness and improves the quality of decision making; unreasoned decisions are arbitrary and unfair, they alleged.</p> <p>            Section 27 of the High Court Act [<em>Chapter 7:06</em>] provides the grounds for review as follows:</p> <p>            “(1) Subject to this Act and any other law, the grounds on which any proceedings on        decision may be brought on review before the High Court shall be</p> <p>            (a) absence of jurisdiction on the part of the court, tribunal or authority concerned</p> <p>            (b) interest in the cause, bias, malice or corruption on the part of the person presiding over the      court or tribunal concerned or on the person presiding over the court or tribunal   concerned or on            the part of the authority concerned, as the case may be;</p> <p>            (c)gross irregularity in the proceedings or the decision”</p> <p>           </p> <p>            From the reading of the applicants’ papers it is clear and conspicuous that the applicants have brought this application under section 27 (c) that is on grounds of gross irregularity on the part of the trial officer.</p> <p>            Section 35 (1) of the Police Act provide as follows:</p> <p>            “the proceedings before or at any trial by board of officers or an officer in terms of this    Act,      shall be as near as may be, be the same as those prescribed for criminal cases in the courts of            Zimbabwe.”</p> <p> </p> <p>            In other words this is why the applicants utilized provisions of section 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] in applying for a discharge of the applicants at the close of the state case.</p> <p>            Having outlined the law, it is now incumbent to analyse the grounds of review raised by the applicants. I will start with the second ground of review outlined by the applicants in their application.</p> <p> </p> <p>(a)        WHETHER RESPONDENTS DECISION TO REFUSE APPLICANT’S ACCESS TO    THE RECORD OF PROCEEDINGS FOR PURPOSES OF SEEKING A REVIEW OF            THE PORCEEDINGS IS GROSSLY IRREGULAR:</p> <p>            Paragraph 7 of the first applicant’s founding affidavit refers this court to page 53 of the record of proceedings. Pages 13 to 85 of the applicants’ application contain the entire record of proceedings which clearly shows that this ground of review is baseless and is accordingly disregarded by this court. The averment by the applicants are either misplaced or purely mischievous to allege that the respondent did not avail the record of proceedings yet they allude to it and went on to annex it to the application.</p> <p> </p> <p>WHETHER RESPONDENT’S REFUSAL TO GIVE REASONS FOR DISMISSING THE APPLICANTS’ APPLICATION FOR DISCHARGE AT THE CLOSE OF THE STATE CASE IS GROSSLY IRREGULAR</p> <p>            The reading of the record of proceedings shows that the respondent, did not refuse to give reasons for the dismissal of the application for discharge of the applicants at the close of the state case. Ms <em>K Hutchings</em> who appeared for the applicants on this application submitted that the respondent should have granted the application for discharge and the failure to do so by the respondent, the trial officer, were in contravention of real and substantial justice. She went on to attack the evidence adduced by the state and cited a number of case law authorities to support her submission. She reiterated the provisions of section 68 (2) of the Constitution and submitted that the failure by the trial officer was a fundamental breach of the applicants’ constitutional rights and went on to cite a host of South African case law authorities to support her submissions. She cited the matter of <em>Makawa and another</em> 1991 (1) ZLR 142 (5). <em>S</em> v <em>Kachipare</em> 1998 (2) ZLR 271 (5), <em>A.G.V Mzizi</em> 1991 (2) 321, <em>S</em> v <em>Tsvangirai</em> 2001 (2) ZLR 426 among others.</p> <p>            Ms <em>Mabasa</em> for the respondent argued that the proceedings brought by the applicant for this review were interlocutory in nature. There was no finality to them and the applicants had a lot of options open to them after the trial. She submitted that the respondent made a correct ruling and ordered the applicants to be put on their defence. She cited cases to the effect that failure to give reasons for a decision made does not violate the applicant’s right to a fair trial. I agree with  Ms <em>Mabasa</em>’s submission. The respondent did not refuse, to give reasons, he did, but indicated that detailed reasons would be furnished at the time of judgment. The question is did this amount to a procedural impropriety which would move this court to review the proceedings below? The procedural impropriety is a ground which covers not only failure to observe the rules of natural justice, but also failures to observe the procedural rules expressly laid down in the particular legislative instrument which confers the power in question.</p> <p>            This is one of the notorious cases where applicants hurriedly move disciplinary proceedings to be abandoned on grounds of rushing to the High Court for ‘review’. The applicants should have proceeded with the hearing and only after a ruling or judgment would they have brought the matter to this court using section 31 of the Police Act for review or appeal against the judgment of the trial officer.</p> <p>            In the matter of <em>Jani</em> v <em>Officer in Charge Mamina and others</em> HH 4289/15 the court held that:</p> <p>            “The High Court will only exercise its renew powers of unterminated proceedings in       exceptional cases where grave injustice might otherwise result or where justice might not   by any means be attained.”</p> <p> </p> <p>            See also <em>Albert Matapo and others</em> v <em>Magistrate Bhilla and the Attorney General</em> HH 84/2010 by Uchena J (as he then was). In <em>Haiti</em> v <em>Katiyo (N.O) and National Prosecuting Authority</em> HHC 6307/15 the court held that:</p> <p>            “The cardinal principle to observe is that the courts are reluctant to issue orders that in     effect   stall trial proceedings, unless the circumstances clearly require it.”</p> <p> </p> <p>            In <em>State</em> v <em>Rose</em> HH 71/12 the court held that the test when a superior court could intervene in unterminated proceedings is whether a grave injustice can be done to a litigant. A superior court however is usually slow to exercise its powers of review in such a matter whether by mandarmus or otherwise and will only do so in rare cases where justice might not by other means be obtained. The intervention can be done if the justice is so gross that it is incapable of correction by way of ordinary review or appeal or where it is unconscionable to wait for the conclusion of the proceedings before seeking review in the normal way.</p> <p>            If section 31 of the Police Act is properly utilized by police details who are subject of disciplinary proceedings. The High Court will not be inundated by review applications of incomplete trial proceedings. These applications of incomplete trial proceedings, interlocutory nature stretch the fiscus and inconvenience the litigants themselves. The applicants in this matter ought to have gone through the proceedings and thereafter utilized section 31 of the Police Act. I am not convinced by the applicants that this is one of the rare applications that the court can exercise its review powers on unterminated proceedings. Had the trial officer failed to provide the reasons for judgment at the end of trial, surely the applicants would have had excellent grounds for review.</p> <p> </p> <p>WHETHER THE DECISION TO DISMISS AN APPLCATION FOR DISCHARGE IS GROSSLY UNREASONABLE AND THAT IT BE SET ASIDE AND SUBSTITUTED WITH AN ORDER UPHOLDING THE APPLICATION FOR DISCHARGE.</p> <p>            This aspect/ground for determination is related to the relief being sought by the three applicants, where they pray that they be all acquitted at the close of the state case. Section 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] provides as follows:</p> <p>            “198 (3) 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,       charge, or any other offence of which  he be convicted thereon, it shall return a verdict of not guilty.”</p> <p> </p> <p>            At the close of the prosecution case the state had led evidence from Charity Manyate, Dennis Manonge, the brother of the deceased and Nyaradzo Magodo, a passenger in deceased’s motor vehicle. All the three witnesses were eye witnesses and all three pointed to the applicants as responsible for the death of the deceased combi driver. It is not in dispute that deceased died from the injuries sustained in the melee between the applicants and the deceased. Witnesses saw the deceased being manhandled by the three applicants, falling and writhing in pain and asking for help from the three applicants who refused to assist him.</p> <p>            It is upon this background that the three applicants applied for their discharge at the close of the state case. The law on the application of section 198 (3) is settled but for purposes of this application it needs reiteration. In the matter of <em>State </em>v <em>Morgan Richard Tovangirai and others</em> HH 119 -2003 Garwe J (as he then was) summarised the oft stated principle as follows:-</p> <p>            “In terms of section 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] where   at the end of the state case the court considers that there is no evidence that the           accused            committed the offence, it has no discretion but to acquit him.”</p> <p> </p> <p>            In particular the court must discharge the accused at the close of the case for the prosecution where:</p> <ul> <li>There is no evidence to prove an essential element of the offence.</li> <li>There is no evidence on which a reasonable court acting carefully, might properly convict.</li> <li>The evidence adduced on behalf of the state is so manifestly unreliable that no reasonable court could safely act on it.</li> </ul> <p> </p> <p>            Whilst it is settled that a court must acquit at the end of the state case, where evidence of the prosecution witness has been to manifestly unreliable that no reasonable tribunal could safely convict on it, such cases will be rare and would occur only in most <em>exceptional</em> cases where the witness’ credibility is so utterly destroyed that no part of his material evidence can possibly be believable.</p> <p>            See also <em>S</em> v <em>Kachipare </em>1998 (2) ZLR 271 (s) at page 276 B – F.</p> <p>            The trial officer ruled that there was a <em>prima facie</em> case for the applicants to put them to their defence having looked at the evidence of the prosecution witnesses, there is no procedural irregularity on his part. The decision he made is above reproach, the discretion he used was proper in this court’s view. The applicants ought to have testified and trial officer would have made a value judgment, in the whole matter. We are dealing with a procedure rather than substantive law and the answer to the question posed by the applicants is whether the trial officers decision to dismiss the applicants’ application for discharge at the close of the state’s case where there are inconsistencies in the state’s evidence is grossly irregular, is obviously in the negative. There is nothing grossly irregular about the procedure allowed by the respondent which would warrant this court to intervene by way of review.</p> <p>            Herbstein and Van Winsen: <em>Civil Practice of the Superior Court of South Africa</em>, <em>4th Edition</em> at p 93 wrote:-</p> <p>            “The reason for bringing proceedings under review or appeal is usually the same, to have the       judgment set aside. Where the reason of wanting that is that the court came to a           wrong   conclusion on the facts of the law. The appropriate procedure is by way of appeal where,           however, the real grievance is against the method of the trial, it is proper to bring the case on     review. The first distinction depends therefore on whether it is the result only or rather the        method of trial, which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well. The giving of a judgment not justified by the evidence would be a matter of appeal and not review upon this test. The       essential question in review proceedings is not the correctness of the decision under review      but its validity” (my emphasis).</p> <p> </p> <p>            The applicants were legally represented and the record of proceedings is tainted with applications, interjections pulling of the state’s representative etc. this is purely uncalled for. It is trite that the Police Act equates proceedings before a disciplinary authority in the police to that of conventional courts but legal practitioners should not take advantage of police prosecutors by forcing them to make concessions which are not necessary not to toe the line of thinking of the legal practitioner. In this matter the decision by the legal practitioner to bring an application for review before the testimony of the applicants was hurriedly made. What was ideal in the circumstances was to lead the applicants into their defence whereafter if convicted the applicants would have resorted to section 34 of the Police Act which provides for options open to convicted officers of the police. Provisions of sections 31 – 34 of the Police Act, must be utilized more often than resorting to unnecessary applications for review for incomplete proceedings.</p> <p>            In this application, the applicants wants this court to order the acquittal of the three applicants at the close of the state case, in other words applicants apply that this court assume the role of trial officer, analyse the evidence of the state and announce a verdict without having the version of the applicants. As stated earlier in this judgment, such a course of action could be taken if the court finds fault on the side of the trial officer. This court did not find any, nor can it be said that the applicants managed to prove any ground to review such an action by a review court.</p> <p>            The trial court should be allowed to proceed with the trial and such completion of trial should be expedited.</p> <p>            Disposition </p> <p>            The application is dismissed with costs.</p> <p><em>Coghlan Welsh &amp; Guest</em>, applicants’ legal practitioners</p> <p><em>The Civil Division of the Attorney General’s office</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/harare-high-court/2018/276/2018-zwhhc-276.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27482">2018-zwhhc-276.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/2018/276/2018-zwhhc-276.pdf" type="application/pdf; length=199551">2018-zwhhc-276.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/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/discharge-close-state-case">Discharge at close of State case</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interlocutory-decision-administrative">Interlocutory decision of administrative</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/2010/84">Matapo and Others v Bhila and Another (HC 2794/10) [2010] ZWHHC 84 (13 May 2010);</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/1995/2">Police Act [Chapter 11:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 18 Jun 2018 13:47:24 +0000 admin 8919 at https://old.zimlii.org S v X (A Juvenile) (HH 298-18, CRB MRWR 38/18) [2018] ZWHHC 298 (06 June 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/298 <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>THE STATE</p> <p>versus</p> <p>X (A Juvenile)</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MABHIKWA J</p> <p>HARARE, 6 June 2018</p> <p> </p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>            MABHIKWA J: This matter was placed before me for review. The accused is a 16-year-old juvenile, a girl residing at No. 180 Shinga Street, Dombotombo, Marondera and doing form 3. On 12 February 2018, at around 1400 hours, she is alleged to have been picked up at Chizori farm bus stop by the complainant, one Tawanda Tizora who was driving a Mazda Bongo vehicle registration No. AEO 1179, most likely a combi. At Muniwa Business Centre, she asked for the complainant’s eco-cash number so that she could pay the fare. The complainant parked his vehicle at a garage and went to relieve himself at a nearby bush. When he returned, the accused had stolen the vehicle and disappeared. She allegedly was involved in a road accident in Kadoma along the Harare-Bulawayo road and was advised by Kadoma Police to produce her driver’s licence within seven days. She was later arrested in Kwekwe.</p> <p>            She was then arraigned before a regional magistrate at Murehwa Court on 16 April 2018. She pleaded guilty and was sentenced to six years which was wholly suspended for 5 years on condition that during that period, she does not commit any offence involving dishonesty for which she is convicted and sentenced to prison without the option of a fine.</p> <p>            It is the manner in which the regional magistrate handled the plea recording which raises concerns.</p> <p>            Firstly, I noted that the learned magistrate did not, at the commencement of trial explain to the accused the provisions of s 191 of the Criminal Procedure and Evidence Act, in compliance with the requirements of s 163 A of the same Act. Section 163 A provides as follows;</p> <p>“<strong>163A</strong></p> <p><strong>Accused in magistrate’s court to be informed of section 191 rights</strong></p> <p>(1) At the commencement of any trial in a magistrate’s court, before the accused is called upon to plead to the summons or charge, the accused shall be informed by the magistrate of his or her right in terms of section 191 to legal or other representation in terms of that section.</p> <p>(2) The magistrate shall record the fact that the accused has been given the information referred to in subsection (1), and the accused’s response to it.</p> <p>It is important to note that the requirements of s 163 A are made peremptory by the use of the term “shall” and it is apparent that the trial magistrate failed to do what was required of him by the law in appraising the accused of his rights.”</p> <p> </p> <p>           In failing to comply with s 163 A, the learned magistrate apparently went on to flout yet another of the young person’s rights. I say so because s 191 reads as follows;</p> <p>“<strong>191 Legal representation</strong></p> <p>Every person charged with an offence may make his defence at his trial and have the witnesses examined or cross-examined—</p> <p>(a) by a legal practitioner representing him; or</p> <p>(b) in the case of an accused person under the age of sixteen years who is being tried in a magistrate’s court, by his natural or legal guardian; or</p> <p>(c) where the court considers he requires the assistance of another person and has permitted him to be so assisted, by that other person.”</p> <p> </p> <p>There is no doubt that the rights of the minor accused person were literally run over. The magistrate was correctly assisted by a probation officer’s report but there is no indication that the minor’s natural or legal guardian was even in court though it may be argued that s 191 says “below the age of sixteen.”</p> <p>The plea recording itself did not help matters Magistrates should be reminded that the fact that an accused person, especially a minor, wishes to plead guilty to the charge is no reason at all to be cursory in dealing with the case.</p> <p>            The following is what is shown by the court record when the learned regional magistrate put the elements of the offence to the accused minor.</p> <p>Elements</p> <p>Q         Correct that on 12 February 2018 at Murewa Business Centre, you stole complainant’s vehicle registrar on charge sheet?</p> <p>A         Yes</p> <p>Q         What did you intend to do with the vehicle</p> <p>A         Personal use.</p> <p>Q         Did you have any lawful right to act as you did</p> <p>A         No</p> <p>Q         Any defence to offer?</p> <p>A         None</p> <p>Verdict</p> <p>G.A.P.</p> <p>            The above four, very routine and all familiar questions are all that the magistrate asked in a typical fast track and cursory way of plea recording.</p> <p>            The crime of theft of motor vehicle is a very serious one. The elements of the offence are equally complex especially for a 16 year old school girl. The magistrate should have probed the minor more, for instance.</p> <ul> <li>The magistrate did not even ask whether she intended to take the vehicle to be hers and forever thereby permanently depriving the owner of the same.</li> <li>The magistrate could have asked whether the minor appreciated exactly what it is to steal a motor vehicle and the consequences thereof. Terms like “correct that you stole” are not enough.</li> <li>The magistrate could have even asked whether indeed it was the minor who actually drove the vehicle from the garage, what was going through her mind and whether people around said anything.</li> <li>In short, the magistrate should have canvassed a number of issues which would leave no doubt as to whether the minor stole or not.</li> </ul> <p>In <em>S </em>v <em>Machokoto </em>1996 (2) ZLR 190 (11) CHINHENGO and GILLESPIE JJ held that</p> <p>“That the plea of guilty was not properly entered because there was a failure to explain the charge and the essential elements must be explained in such a way as is calculated to inform the accused if he is unrepresented of the nature of the charge in sufficient clarity and detail as will suggest to him in his knowledge of the matter, whether he has a defence to offer.”</p> <p> </p> <p>See also <em>S </em>v <em>Matumbe and Ors </em>1984 (10 ZLR 283.</p> <p> </p> <p>In my view, it was imperative for the magistrate to deal with the essential elements in sufficient detail as to the date of the alleged offence, specific nature of the actions taken, the <em>mens rea</em> of the accused and so on in order to satisfy the requirements of s 271 (20) (b) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. From the record, the trial magistrate was in a haste to convict. No meaningful inquiry was made either in relation to the circumstances surrounding the commission of the offence or circumstances peculiar to the offender. Our courts have always emphasised the need to carry a full and meaningful enquiry before convicting and sentencing an accused. More diligence is obviously expected when it is a minor facing serious criminal charges.</p> <p>            These are the short comings which my brother MAWADZE J lamented and sought to correct in his review of two separate cases by the same provincial magistrate in HH 139-11 being <em>State </em>v <em>Morrison Ncube &amp; 3 Ors and S </em>v <em>Michael Rusondo and Anor – </em>MAWADZE J stated thus;</p> <p>“The common threat which runs through both matters <em>in casu </em>is the failure by the learned magistrate to deal with cases involving children in conflict with the criminal law.  Judicial officers should always understand and bear in mind that children in conflict with the criminal law are a special category of offenders for which there are specific and perculiar legislative provisions designed to deal with such offenders both within our jurisdiction and other international conventions.”</p> <p> </p> <p>The judge further quoted with approval GILLESPIE J in the case of <em>S </em>v <em>C </em>1997 (2) ZLR</p> <p>395 H at p 400 G-401 A, that;</p> <p>“The concept of placing a juvenile, particularly a very young child, unrepresented and unassisted by its parents on trial before a magistrate is one that is inherently repugnant. The same juvenile would be regarded in a civil court as incapable of enforcing or defending its rights. What is different is that the criminal system of justice affords the unassisted minor the capacity to defend himself. It might well be though that to place such a child in a position where he or she is expected to conduct his own defence in an alien environment, in adversarial proceedings is the expect for two much.”</p> <p> </p> <p>The honourable judge went on to refer in our jurisdiction to ss 191, 195, 196, 197, 351,</p> <p>352 and 353 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] as well as ss 6, 7, 8, 63, and 70 of the Criminal Law (Codification and Reform Act) [<em>Chapter 9:23</em>] as some of the sections that specifically far way the courts should deal with juvenile offenders or witnesses who are both in contact or conflict with the criminal law.</p> <p>            On the question of sentence, I am cognizant of the fact that the minor was sentenced to a non-custodial sentence (6 years wholly suspended for 5 years). I however notice that the sentence still was on the high side so as to warrant inference.  Half the sentence (3 years wholly suspended for 5 years) would meet the justice of the case.</p> <p>            In the circumstances, I am unable to certify the proceedings as being in accordance with real and substantial justice.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </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/2018/298/2018-zwhhc-298.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23615">2018-zwhhc-298.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/2018/298/2018-zwhhc-298.pdf" type="application/pdf; length=198035">2018-zwhhc-298.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/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/theft">Theft</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/juvenile-offender">Juvenile offender</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/guilty">guilty</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</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/unrepresented-accused">Unrepresented accused</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/youthful-offenders">Youthful offenders</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</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/2011/139">S v Ncube and Others (CRB KK 1062-3/10) [2011] ZWHHC 139 (23 June 2011);</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/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Fri, 15 Jun 2018 06:31:11 +0000 admin 8904 at https://old.zimlii.org Shanje v Murehwa & 3 Others (HH 218-18, HC 9346/17) [2018] ZWHHC 218 (25 April 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/218 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>AARON SHANJE                                                                                                                   </p> <p>versus</p> <p>TICHARWA MUREHWA</p> <p>and<br /> THE MINISTER OF MINES AND MINING DEVELOPMENT N.O.</p> <p>and</p> <p>PROVINCIAL MINING DIRECTOR MANICALAND N.O.</p> <p>and</p> <p>KINGSTON MUDONHI</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA and MUZENDA JJ</p> <p>HARARE, 27 March 2018 and 25 April 2018</p> <p> </p> <p> </p> <p><strong>Opposed application for dismissal for want of prosecution</strong></p> <p> </p> <p><em>L. Uriri,</em> for applicant</p> <p><em>G.R.J. Sithole,</em> for the 1st respondent</p> <p><em>K. Warima,</em> for the 2nd and 3rd respondents</p> <p> </p> <p>            MWAYERA J: This is an application for dismissal of a matter for want of prosecution in terms of r 236(3) of the High Court Rules, 1971. The applicant sought to have first respondent’s application for review under case number HC 5172/14 dismissed. The second, third and fourth respondents are not opposed to the application. The first respondent is however opposing the application.</p> <p>            The background of the matter as discerned is as follows. The applicant Aaron Shanje and first respondent Ticharwa Murehwa had a mining dispute which was resolved by the second respondent in applicant’s favour. The applicant had argued before second respondent that the first respondent had encroached into the applicant’s mine. After the decision by second and third respondents, first respondent filed for review before this court which review, the applicant <em>in casu </em>is vehemently opposing.</p> <p>            In this application the applicant argues that he filed the current application on 6 October 2017 about four months after the first respondent had filed a chamber application for review under case no. HC 5172/14. The applicant contends that there must be finality in litigation and additionally to prevent the abuse of the court process.  The applicant further argued that the application for review filed by the first respondent was abuse and was made by the first respondent purely to extend the stay and continue mining the applicant’s mineral resources, with no intention of prosecuting the application for review. According to the applicant, the application for review was issued on 12 June 2017, but it was not immediately served on the respondents. The applicant contends further that the first respondent has not yet served the respondents in the matter for review. Even though the applicant concedes that the first respondent has filed an answering affidavit as well as Heads of Argument, the application for review can still not be set down because the first respondent has not as yet served the second and third respondents with the original court application, <em>Mr Uriri</em> for the applicant correctly pointed out that that r 236 bestows on this court wide discretion in an application of this nature.</p> <p>            The first respondent in his opposition states that after filing the review application on the 12 June 2017, all the parties were served on 21 June 2017. On 26 June 2017, he filed an urgent chamber application under case no. HC 5627/17 and that application was disposed of by Foroma J on 4 August 2017 and the judgement was in first respondent’s favour. The present applicant also filed a chamber application under case No. HC 7757/17 which application was disposed off on 11 October 2017 where the court issued an order binding both parties, hence since June 2017 both Applicant and first Respondent have been battling in the courts over the dispute and by the nature of the urgency of these matters first respondent had to put in abeyance the review application. Mr<em> G.R.J Sithole</em> argued that the first respondent has already filed the answering affidavit as well as the heads of argument and the matter of an application for review is now ready for hearing and finalisation.</p> <p>            The issue for determination by this court is whether the first respondent failed to act in expediting the prosecution of the review application to warrant the dismissal of such an application for want of prosecution in terms of r 236(3). This requires the court to look at the conduct of the first respondent and the explanation proferred by him.</p> <p>            The rules of this court provide in r 236 (3) and (4) that;</p> <p>            (3) “Within one month thereafter, the applicant has neither filed an answering        affidavit nor set the matter down for hearing, the respondent on notice to the      applicant may either</p> <p>                        (a) set the matter down for hearing in terms of r 223 or</p> <p>                        (b) make a chamber application to dismiss the matter for want of                                        prosecution and the judge may order the matter to be dismissed with costs or                     make such order on such terms as he thinks fit.</p> <p>            (4) Where the applicant has filed an answering affidavit in response to the respondent’s opposing affidavit but has not within one month thereafter set the       matter down for hearing the Respondent on notice to the applicant may either;</p> <p>                        (a) set the matter down for hearing in terms of R223, or</p> <p>                        (b) make a chamber application to dismiss the matter for want of                                        prosecution, and the judge may order the matter to be dismissed with costs                         or make such other order on such terms as he thinks fit.”</p> <p> </p> <p>            Rule 236 as amended by s 7 of the High Court (Amendment) Rules 2000 (number 35) was intended to ensure the expeditious prosecution of matters in the High Court. The Rule was deliberately designed to ensure that the court may dismiss an application if the principal litigant does not prosecute its case with due expedition. I think, however, as admitted by Mr <em>Uriri</em> in his submissions, the overriding consideration for the Judge is to exercise his or her discretion in such a manner as would give effect to the intention of the law maker. The primary intention of the lawmaker is to ensure that matters brought to the court are dealt with due expedition.</p> <p>             (See <em>Scotfin Limited</em> v <em>Mtetwa </em>2001 (1) ZLR 249 <em>per</em> Chinhengo J, <em>Gwasira </em>v <em>Sibanda</em> and others HH-298-17 PER Matanda-Moyo J)</p> <p>            The court has to look at the following in an application for this nature brought under r 236(3).</p> <ul> <li>The public interest in the expeditious resolution of disputes.</li> <li>The excuse given for the delay in prosecuting the matter.</li> <li>The availability of less drastic solution.</li> <li>The prejudice likely to be suffered by the other party.</li> </ul> <p> </p> <p>            (<em>Ordeco (Private) Limited  and others</em> v <em>Govere and others</em> HH-21-2117.)</p> <p>            In <em>Moan</em> v <em>Moon</em> HB 94/05 two more principles were added by the court</p> <ul> <li>That the party seeking relief must present a reasonable explanation of default and</li> <li>That on the merits the party has a<em> bonafide</em> case which prima facie carried some prospects of success.</li> </ul> <p>            The above analysis reflects that the paramount objective of Rule 236 is to ensure that    there is finality to the legal proceedings.</p> <p>            The following is common cause.  The application for review by the first respondent was issued in June 2017 and as at the date of hearing, the first respondent has since filed the answering affidavit as well as the heads of argument. There are two judgements in favour of the first respondent.  One by Foroma J under case No. HC 5627/17 and the other one by Phiri J under Case No. HC 7757/17 binding both applicant and first respondent. It has also been agreed by both counsel that R236 of the High Court Rules is to ensure that the court may dismiss an application if the principal litigant does not prosecute its case with due expedition. The court may instead of dismissing the application make such other order as it thinks appropriate. In terms of r 236 (3) or (4) the respondent has an option either to set the matter down for hearing in terms of r 223 or a chamber application of the nature as the one before me.  The court entertaining an application for dismissal for want of prosecution has a discretion either to dismiss the matter or to make such other order as he or she may consider to be appropriate in the circumstances.</p> <p>            What is in issue therefore is whether the applicant has proved his application on a balance of probabilities .</p> <p>            After issuing of the application for review by the first respondent, it is common cause that there were three applications made by the parties against each. One was at Mutare Magistrates Court and two at the High Court. The matter before Foroma J was appealed against by the applicant but in principle there are two orders to first respondent’s benefit or advantage and which orders remain extant.  Those orders come as a result of an assessment of prospects of success on a review application made by the first respondent which is pending before the High Court. The balance of convenience favours that since the first respondent has already filed the answering affidavit as well as heads the review application be prosecuted. The first respondent should serve the pleadings or process on the second to fourth respondents as <em>per</em> the rules but the second to the fourth respondents seem to be willing to abide by the outcome of the application. They had been included in the other applications heard by Foroma J and Phiri J where they are aware of the review application by the first respondent but have not expressed interest in the review application, it is the conduct of the third and fourth respondents which is subject to review yet none of them have shown interest in the review application. Whilst this observation may not be directly pertinent to the question at hand, they certainly fortify the aspect of prospects of success on the application for review for the first respondent.</p> <p>            In any event, I see no logic or reason in dealing with dismissal of the application for review of a matter whose pleadings are at most closed and awaiting a hearing date. Whereas it is important that there be finality to litigation the court in exercise of its discretion should not lose sight of the central aspect of ensuring that the interest of administration of justice is met.</p> <p>            The applicant contended that he is suffering prejudice because the first respondent is mining in his claim. This was but an averment which was never substantiated. The first respondent did not establish the basis for such, he has not shown that he had at one occasion extracted any mineral from the ground. However, the person who stands to suffer is the first respondent if the application for dismissal for want of prosecution is granted. He will forfeit the benefit of Foroma J’s order as well as part of Phiri J’s judgment. He will be removed from the mine and application for review will have adverse effects on his financial investments. The matter will not have been ventilated on merits.</p> <p>            In the result, the applicant’s position cannot be sustained. Its prayer for an order dismissing first Respondent’s application for review for want of prosecution is hereby dismissed and costs be in the cause of the application for review.</p> <p> </p> <p> </p> <p>MUZENDA J agrees---------------------------</p> <p><em>Machaya and Associates, </em>applicant’s legal practitioners<em>  </em></p> <p><em>Mvere Chikamhi Mareanadzo  </em>1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney, </em>2nd and 3rd 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/2018/218/2018-zwhhc-218.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27522">2018-zwhhc-218.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/2018/218/2018-zwhhc-218.pdf" type="application/pdf; length=133249">2018-zwhhc-218.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/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-%E2%80%93-application">dismissal of – application for</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/chamber-application">chamber application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/proceedings-brought-review">Proceedings brought on review</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/2017/298">Gwasira v Sibanda &amp; Others (HH 298-17 HC 673/17) [2017] ZWHHC 298 (17 May 2017);</a></div></div></div> Thu, 24 May 2018 08:32:31 +0000 admin 8867 at https://old.zimlii.org S v Bvuto (HH 94-18, CA 156/16 Ref CRB MSH 32-40/16) [2018] ZWHHC 94 (03 August 2017); https://old.zimlii.org/zw/judgment/harare-high-court/2017/94-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ARNOLD BVUTO                                                                                       </p> <p>versus                                                                                                 </p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>HUNGWE &amp; MUSHORE JJ</p> <p>HARARE, 3 August 2017</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>J Makiseni,</em> for the appellants</p> <p>Mrs<em> F Kachidza, </em>for the respondent</p> <p> </p> <p>HUNGWE J:   The nine appellants were convicted on their own plea of guilty to contravening section 368 (2) as read with s 368 (4) of the Mines and Minerals Act, [<em>Chapter 21:05</em>] (“the Act”). They were each sentenced to the mandatory 2 years imprisonment. They appealed against conviction on the basis that they were convicted on a charge which was not supported by the facts admitted between them and the State.</p> <p>The facts agreed at trial are as follows. Police received information about the eight appellant’s activities at Lennox Gold Mine, Mashava, during the night of the previous day. That information indicated that the accused had illegally entered the gold mine and manually removed gold ore from an underground shaft. Acting on that information, the police proceeded to Lennox Gold Mine. They did not find the accused at the mine as, by then, they had removed their loot and loaded it into a hired private motor vehicle. Police intercepted the accused and stopped their motor vehicle at a tollgate on the Mashava-Zvishavane road. A search of the vehicle yielded three sacks of gold ore, a chisel and a hammer. The accused failed to produce any documentation permitting them to remove or possess gold ore. The police arrested the eight accused and charged them with contravening s 368 (2) of the Act. That section provides:</p> <p><strong>368 Prospecting prohibited save in certain circumstances</strong></p> <p>     </p> <p>      (1) Subject to subsections (2) and (3), no person shall prospect or search for any mineral, mineral  oil or natural gas except in the exercise of rights granted under a prospecting licence, exclusive prospecting order or special grant or unless he is the duly authorized representative of the holder of such licence, order or special grant and acting in the exercise of such rights.</p> <p>(2) No person shall prospect or search for any mineral, mineral oil or natural gas unless he is an approved prospector.</p> <p>      (3)……………………………………………….</p> <p>                    (4)………………………………………..    </p> <p>                     (5)………………………………………………”</p> <p> </p> <p> </p> <p> </p> <p>The accused pleaded guilty to the charge preferred by the State. Trial proceeded in terms of s 271(2) (b) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>]<em>.</em> In canvassing the essential elements of that offence, the question was put:</p> <p> </p> <p>“Correct that on 26 /02/15 and at Lennox Mine you were searching or prospecting for gold.”</p> <p> </p> <p>The answer was in the positive for each accused. The next relevant question put was:</p> <p> </p> <p>“At the time of prospecting, were you holders of permit or licence authorizing you to  </p> <p>  prospect for the said mineral?”</p> <p> </p> <p>The answer was predictably in the negative. A conviction for each accused followed. They were each sentenced to the minimum mandatory two years imprisonment. The accused were unrepresented both at the time of arrest and at the trial until after the mandatory minimum sentence was imposed. The law imposes a positive duty on the presiding magistrate when recording a plea of guilty to ensure that the rights of such a person are carefully protected, respected and upheld.</p> <p>In <em>S </em>v<em> Dube &amp; Anor </em>1988 (2) ZLR 385 (SC) the court cautioned:</p> <p> </p> <p>“Where there is a plea of guilty, judicial officers must be careful not to regard every fact as proved just because it is admitted. Where the accused admits "possession" of a prohibited article, the court must establish just what the accused is admitting, possession being a difficult legal concept. A similar caution applies to the explanation of the charge and the elements of the offence. Section 255(3) of the Criminal Procedure and Evidence Act [Chapter 59] requires that the court's explanation, any statements by the prosecutor and the reply and statement by the accused be recorded. This record should be full. Where there is more than one accused person, each should be dealt with separately.</p> <p> </p> <p>In cases where the law provides a minimum penalty unless special circumstances exist, the accused should be told what the penalty is and the meaning of special circumstances. This should be done early in the trial. Allied to this enquiry is the broader one of whether the accused will have a fair trial. The court should consider whether the case is a complex one, from the point of view of such matters as -</p> <p>(a)        whether the ascertainment of the facts includes difficult legal concepts such as "possession", "consent" or "knowledge";</p> <p>                        (b)        whether the facts themselves are complex or difficult;  </p> <p>                        (c)        whether there is a need to prove "special reasons" or "special circumstances" to avoid a minimum sentence;</p> <p>                        (d)        whether a long prison sentence is likely to follow conviction.</p> <p>In such cases, the court should ask itself:</p> <p>(1)        even if the accused has pleaded guilty, whether it would nonetheless be appropriate to enter a plea of not guilty in terms of s 255A of the Criminal Procedure and Evidence Act;</p> <p>(2)        if the accused is unrepresented, whether it would be fair and appropriate to advise him of the complexities of the matter and to ask him if he has considered obtaining legal representation; and   </p> <p>(3)        if satisfied that the accused should have legal representation but cannot afford it, whether the court should certify that legal representation be provided under the Legal Assistance and Representation Act [<em>Chapter 66</em>]<em>.”</em></p> <p>           </p> <p>Similarly, in <em>S </em>v <em>Magore</em> 1996 (2) ZLR 88 (SC), the court held, that where an accused is not legally represented, and particularly where that person is uneducated and unintelligent, the court must be very careful to ensure that the accused fully understands the charge and all its essential elements and that he genuinely and unequivocally admits to the charge and its essential elements and to the facts alleged by the prosecution. <em>S </em>v <em>Chidawu </em>1998 (2) ZLR 76 (HC).</p> <p>When a trial court decides to proceed in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>]<em>,</em> where the accused is unrepresented, the duty of the court in safeguarding the rights of the suspects cannot be overemphasised. The reasons for this are manifold; first, the vast majority of criminal prosecutions in the magistrates’ court are against first offenders. Secondly, they appear in most cases on their own without legal representation. Thirdly, these suspects, in the majority of cases, are ignorant of the law as well as their rights. Fourthly, the overwhelming atmosphere of court proceedings induces in first time offenders a sense that an admission of the allegations will draw sympathy of the courts. In these circumstances, the magistrates becomes the primary bulwark defending the ignorant or the impoverished against the potential injustices that could visit the process through an excess of zeal or pressure of work. See <em>S </em>v<em> Tau</em> 1997 (1) ZLR 93 (H) @ p 99.</p> <p>            In <em>S </em>v<em> Machokoto</em> 1996 (2) ZLR 190 (HC) this court went further and observed that the essential elements must be explained in such a way as is calculated to inform the accused, if he is unrepresented, of the nature of the charge in sufficient clarity and detail as will suggest to him, in his knowledge of the matter, whether he has a defence to offer. This does not imply that the magistrate should suggest defences to the accused, but it should not be forgotten that, where the accused is unpresented the magistrate is the only source of independent assistance towards an understanding of the nature of his predicament. The fact that the accused wishes to plead guilty is not a reason to adopt a cursory approach in explaining the essential elements of the offence charged. On the contrary, it is necessary to ensure that the accused has applied his mind to the true import of the charge and is properly aware that nothing he may wish to say could constitute a defence.</p> <p>The caution sounded in these cases is especially relevant where the crime charged impacts some technical terms such as possession or similar concepts which a person lacking legal training would generally be aware of or familiar with. Where a crime merely involves possession or prospecting, the dangers of an incorrect plea of guilty are greater than usual because the accused person may not realise that his state of mind is very relevant. In such cases it is undesirable to charge the accused simply for prospecting or possession but reference should also be made to the penalty section of the relevant Act so as to alert the accused of the gravity of his or her predicament. See <em>S </em>v <em>Zvinyenge &amp; Other</em> 1987 (2) ZLR 42 (SC).</p> <p>The court, being the ultimate bulwark in defending the ignorant and or impoverished, must always recall the exhortation of s 70 (1) of the Constitution of Zimbabwe which provides:</p> <p> </p> <p><strong>70 Rights of accused persons</strong></p> <p>(1) Any person accused of an offence has the following rights—</p> <p>(<em>a</em>) to be presumed innocent until proved guilty;</p> <p>(<em>b</em>) to be informed promptly of the charge, in sufficient detail to enable them to answer it;</p> <p>(<em>c</em>) to be given adequate time and facilities to prepare a defence;</p> <p>(<em>d</em>) to choose a legal practitioner and, at their own expense, to be represented by that legal practitioner;</p> <p>(<em>e</em>) to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result;</p> <p>(<em>f</em>) to be informed promptly of the rights conferred by paragraphs (<em>d</em>) and (<em>e</em>).</p> <p>(<em>g</em>) to be present when being tried;</p> <p>(<em>h</em>) to adduce and challenge evidence;</p> <p>(<em>i</em>) to remain silent and not to testify or be compelled to give self-incriminating evidence;</p> <p>(<em>j</em>) to have the proceedings of the trial interpreted into a language that they understand;</p> <p>(<em>k</em>) not to be convicted of an act or omission that was not an offence when it took place;</p> <p>(<em>l</em>) not to be convicted of an act or omission that is no longer an offence;</p> <p>(<em>m</em>) not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits;</p> <p>(<em>n</em>) to be sentenced to the lesser of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing.”</p> <p> </p> <p>Clearly, the appellants’ right to a fair hearing were prejudiced by the approach trial court adopted. The presumption of innocence was ignored as the court disregarded the fact that the charge was not proved by the facts relied upon by the State. In all offences for which a minimum mandatory sentence is prescribed, it is an infringement for a trial court to fail to advise an unrepresented accused person of his or her right to legal representation, at his own expense, by a legal practitioner of his choice; or, if he cannot afford one, to be represented by a legal practitioner assigned by the State and at the State’s expense, if substantial injustice would otherwise occur: s 70 (1) (d) and (e) of the Constitution of Zimbabwe. These rights are entrenched for the obvious reason; to protect, to promote; to uphold and to ensure the realisation of the accused’s fair trial rights.</p> <p>In my respectful view, it is high time that our legal system give effect to the constitutional right to a fair trial by enacting appropriate legislation that would entitle every suspect standing trial who faces a minimum mandatory sentence to legal representation at the expense of the State. Besides being a positive fulfilment of the right to a fair hearing, such a step would ensure that the wheels of justice turn more swiftly and efficaciously. The Law Development Commission should considers the suggestion seriously.</p> <p>Finally, in response to the notice and grounds of appeal, the learned trial magistrate stated thus:</p> <p>“I convicted the appellants on the charge preferred as I was in no doubt that the appellants were looking for minerals regardless of where they were doing it.”</p> <p>            This attitude reflects a failure of appreciation of the true nature of the grounds of appeal. The grounds of appeal attacked the very foundation of the conviction. The learned magistrate clearly proceeded with the trial on the baseless and unfounded assumption that a person who possess gold ore without a permit must have necessarily “looked for it”. He erroneously assumed that “prospecting” and “possession” are synonymous terms. This was an error of law. Section 271(2) (b) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>] provides for a summary trial procedure. It permits a criminal trial court to proceed to convict a suspect where he pleads guilty to any offence without requiring the leading of evidence to prove the State’s case. Whilst it facilitates the prompt dispatch in straightforward cases, this procedure is open to abuse by overzealous police and court officials who are under pressure to achieve set statistical data when unrepresented accused are subject of judicial processes. The temptation to clear such suspects by manipulating the provisions of this procedure are all too obvious to the seasoned practitioner of the law. In the present case, had the police not short-circuited their investigational skills and presented the facts to court, it is highly unlikely that the appellants would have tendered guilty pleas. I make this observation in light of the following. The appellants went to a gold mining location, Lennox Mine, Mashava, where they proceeded into an underground tunnel. There, they removed gold ore. They were not prospecting for a mineral. They knew that there was ore from which they would get gold if they processed it. They removed it with the full knowledge that this was gold ore. The location had long been established as a gold mine. The issue of “looking for” or “prospecting” did not arise. They simply stole gold ore. The facts supported a contravention of s 379 of the Mines and Minerals Act, [<em>Chapter 21:05</em>]. In the exercise of this court’s review powers in s 27 of the High Court Act, [<em>Chapter 7:06</em>]<em>,</em> I proceed to substitute the charge preferred with s 379 of the Mines and Minerals Act, [<em>Chapter 21:05</em>].</p> <p>            As pointed out above, but for the admission of a contravention of s 379 (1) of the Act, an appropriate order would have been to set aside the conviction and order a trial de novo. In light of the fact that the appellants’ counsel conceded that the facts disclosed an offence, it is only fair that this court substitute the conviction on prospecting with that of possession of ore without a permit issued by the proprietor of Lennox Gold Mine. Following upon the alteration of the conviction, the sentence must necessarily be quashed and in its place, the following is imposed:</p> <p>            “Each Accused: <strong>US$200 or in default of payment 3months imprisonment.”</strong></p> <p>MUSHORE J: agrees………………………….</p> <p><em>H Tafa &amp; Associates</em>, appellants’ 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/harare-high-court/2017/94/2018-zwhhc-94.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24391">2018-zwhhc-94.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/2017/94/2018-zwhhc-94.pdf" type="application/pdf; length=228525">2018-zwhhc-94.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item even"><a href="/tags/procedural-fairness">Procedural Fairness</a></li><li class="vocabulary-links field-item odd"><a href="/tags/supervisory-jurisdiction">Supervisory Jurisdiction</a></li></ul></span><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/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/guilty">guilty</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/criminal-procedure-sentence-statutory-offences">CRIMINAL PROCEDURE (SENTENCE) Statutory offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/powers-high-court">Powers (HIGH COURT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered an appeal against a prior criminal conviction. </p> <p>The appellants had extracted gold ore from a gold mine and were intercepted and arrested by the police. They were charged under s368(2) of the Mines and Minerals Act for illegally prospecting for minerals. They pleaded guilty, were convicted and sentenced to the mandatory two-year prison sentence. They appealed on the ground that they were convicted on a charge which was not supported by the facts admitted between them and the State.</p> <p>The court had to consider whether the appellants’ plea of guilty was sufficient to convict them for contravening s368(2) of the Act. The court found that courts have a duty to protect the rights of the accused and to ensure that they fully understand the charge and the essential elements, as well as that they genuinely, and unequivocally admit to the charge, its essential elements, and the facts alleged by the prosecution. </p> <p>In this case, the lower court simply accepted the uninformed admission of guilt by the accused as proof and disregarded the fact that the charge was not proved by the facts relied upon by the State. </p> <p>Further, the court found that the appellants did not prospect for minerals, they simply stored gold ore from a known mine, thus contravening s379 not s368. </p> <p>Accordingly, the appeal was upheld. </p> </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/1961/38">Mines and Minerals Act [Chapter 21:05]</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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 21 May 2018 10:49:24 +0000 admin 8840 at https://old.zimlii.org Dube v Mungwari Esquire N.O & Another (HH 101-18, HC10875-17) [2018] ZWHHC 101 (28 February 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/101 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MEHLULELI DUBE</p> <p>versus</p> <p>MUNGWARI ESQUIRE N.O.</p> <p>and</p> <p>THE STATE</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSHORE J</p> <p>HARARE, 15 February 2018 &amp; 28 February 2018</p> <p><strong>Review Judgment</strong></p> <p><em>D C Dhumbura</em>, for the applicant</p> <p><em>R Chikosha</em>, for the 2nd respondent</p> <p>            MUSHORE J: This is an application for the review of criminal proceedings in the Magistrates Court. The applicant unsuccessfully raised an exception to the charges in their totality stating that on the facts and the indictment itself, he had not committed an offence. The proceedings are not complete. Thee review application is being made by the applicant who I desirous that if this court agrees with the exception which he took, that the proceedings against him be halted. The grounds for review which the applicant requires a determination are stated as follows:-</p> <ol> <li>That the Magistrate did not fully address the issue “<em>that I had knowledge of an on-going investigation and that was sufficient to bring me within the ambit of the charge”</em>; and</li> <li>The court <em>a quo</em> also (wrongly) found “<em>that there was no need for the Police to produce a court order before my co-operation could be enforced”</em></li> </ol> <p>The review powers of this court are outlined in s 29 (1) (a) as read with s 29 (2) of the High Court Act <em>[Chapter 7:06].</em></p> <p>Applicant was charged with having defeated the course of justice as defined in s 184 (1) (e) of the Criminal (Codification and Reform) Act [<em>Chapter 9:23</em>]. He was charged in the alternative with money laundering as defined in s 8 (3) of the Money Laundering And Proceeds of Crime Act <em>[Chapter 9:24]</em>, it being alleged that he had unlawfully acquired, used or possessed US$183 000.00; or alternatively Criminal Abuse of Office by ignoring a Police directive to stop a financial transaction.</p> <p>The background in this matter was that applicant if employed by Fidelity Printers and Refiners in the position of Head, Gold Operations. The State Outline charges that on 13 June 2017, a certain Malvern Chimutashu representing Vernmal Investments approached a certain Blessmore Chanakira and represented to Blessmore Chanakira that he was selling 225 000 litres of diesel at a value of US$234 000.00. In pursuance of such purchase, Blessing Chanakira paid Malvern Chimutashu by depositing US$234 000.00 into Vernmal Investment’s CABS bank account. Instead of providing Blessing with the diesel, Malvern used part of the money (US$183 000.00), which had been deposited by Blessing, to purchase gold from Fidelity Printers and Refiners, Msasa for himself. Malvern failed to supply Blessing with the diesel and Blessing followed the issue up with Malvern. Malvern confessed that he had used part of the fuel purchase proceeds to procure gold. In following this up, a certain Mr Moyo from Fidelity Printers and Refiners intervened and directed Malvern to write a letter of refusal of the funds to procure gold, to be honoured and paid. Malvern did as directed and that letter was received by applicant who allegedly advised Assistant Inspector Mudzimukunze that he would temporarily stop the transaction, and thereby prevent the payment from going through. According to the State, the Assistant Inspector asked the applicant to refrain from honouring the payment until such time that the Police obtained a warrant of seizure from the court. The warrant of seizure was apparently delivered to the applicant 2 ½ hours later. However by the time that the warrant of seizure was obtained by the Police, the payment to Fidelity had been processed already. The State alleged that applicant had deliberately allowed the transaction to go through and thereby applicant had obstructed and/or defeated the course of justice.</p> <p>Applicant’s counsel took a preliminary point at the inception of the criminal trial <em>a quo</em> by way of an exception to the charges filed.  Applicant disputes, and maintains that he did not act unlawfully. He stated through his counsel that Assistant Inspector Mudzimukunze had informed him that he would bring a court order. Applicant states that the court order was never produced and thus he was not bound at law to stop the payment. He submitted that instead he was bound by his contract of employment to perform his duties and that he had acted according to his employment obligation. He said that the warrant of seizure was produced by the Police much later but that his actions were not unlawful even in the face of a notice of seizure having been obtained and being shown to him well after he had allowed the transaction to go through. He submitted through his counsel that the notice of seizure was not relevant to any action which applicant took in that it was a notice to seize assets.</p> <p>In essence therefore the exception to the charge which was taken by applicant a quo was that the prosecution against him had no merit because;-</p> <ul> <li>He had not committed an offence because there was no court order in place barring the transaction, when the transaction went through; and</li> <li>The fact that the transaction went through did not defeat or obstruct a fraud investigation; and</li> <li>That in any event he had no knowledge of there being an on-going fraud investigation at the time that the Assistant Inspector spoke to him.</li> </ul> <p>The charge of defeating or obstructing the course of justice is an offence where the intention of an accused, either by an act or omission, is designed to defeat or obstruct criminal proceedings underway. By that definition it must be assumed that an accused was aware at the relevant time that there were criminal proceedings underway and that such an act or omission would have the effect or potential to obstruct such investigative proceedings, or to alter the course of an investigation. In his submissions to the court, applicant’s counsel submitted that applicant was never ordered by lawful means to stop the transaction. It was pointed out that in the indictment itself pertaining to the obstruction of justice states that applicant was never ordered by court order (or even by the Police themselves)  to stop the transaction, but had merely been ‘advised’ by the police to do so. It cannot therefore be concluded that applicant has committed a crime. I agree with the point taken by applicant’s counsel. If applicant had been shown a Court Order which ordered that the transaction be stopped; and nevertheless applicant proceeded to ignore it, then it could be said that applicant had defeated the course of justice. In those circumstances applicant would have committed an unlawful act. Further, by seeing a court order, applicant would have been aware that there was a criminal investigation underway or that there was a crime committed or about to be committed. In my view, anything short of the production of an actual court order is not a reasonable basis to conclude that applicant formed the intent to obstruct the course of justice.</p> <p>In actual fact applicant was simply performing his contractual obligations to his employer. He had nothing to gain in either event. He is unknown to both Malvern and Blessing. Applicant never purported to represent himself. At all times he was acting as an employee of Fidelity Printers and Refiners and his actions were in the course of such employment. Further, Fidelity Printers and Refiners also had nothing to gain by the transaction proceeding.</p> <p>I do not accept that there was any criminal motivation behind applicant’s actions. Applicant’s actions did not end or forfeit the criminal investigation. There is no intimation that any money was lost or that any financial prejudice was occasioned. A warrant of seizure has been obtained. Such a warrant was obviously obtained in order to freeze the transaction. The warrant of seizure states:-</p> <p>“…..It is therefore directed that FIDELITY PRINTERS AND REFINERS, MSASA, HARARE:</p> <p>Temporarily stop delivery or refund of payment in respect of purchase made by VERNMAL INVESTMENTS from CABS account  number 10005609667 on 13 June 2017”</p> <p>Because there is no mention of financial prejudice in either of the charges and the State Outline, it is clear that no financial prejudice (an essential part of the charges) has been shown to exist. Applicant is not even mentioned in the Investigation Officer’s witness statement for the fraud investigation.</p> <p>Accordingly, it is my considered view that the Magistrate failed to provide justification for believing that applicant had knowledge of the fraud investigation; or that applicant’s performance of his work duties were a criminal act.</p> <p>In the result I order as follows:</p> <ul> <li>The exception taken by the applicant as a preliminary point is upheld.</li> <li>The main charge and alternative charges of:-</li> </ul> <ul> <li>contravening section 184 (1) (e) of the Criminal Code,</li> <li>contravening section 8 (3) of the Money Laundering and Proceeds Crime Act; and</li> <li>contravening section 174 of the Criminal Code;</li> </ul> <p>                   be and are hereby dismissed forthwith”.</p> <p><em>Coghlan Welsh &amp; Guest</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, for 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/harare-high-court/2018/101/2018-zwhhc-101.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22585">2018-zwhhc-101.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/2018/101/2018-zwhhc-101.pdf" type="application/pdf; length=172085">2018-zwhhc-101.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/charge">Charge</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/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (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/1981/29">High Court Act [Chapter 7:06]</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/2013/4">Money Laundering and Proceeds of Crime Act [Chapter 9:24]</a></div></div></div> Thu, 17 May 2018 07:31:40 +0000 admin 8811 at https://old.zimlii.org