1
HB-117-15
HCR 104-13
X REF HC 981-13 & HCB 269
COLLEN MOYO
versus
OWEN TAGU N.O.
And
THE STATE
And
ANTI-CORRUPTION COMMISSION
IN THE HIGH COURT OF ZIMBABWE
KAMOCHA J
BULAWAYO 3 AND 4 JUNE 2015
Court Application for Review
L. Nkomo for applicant
W. Mabhaudi for respondents
KAMOCHA J: The applicant seeks for the following order from this court:-
“It is ordered that:-
- The decision of the 1st, 2nd and 3rd respondents made and communicated on 27th of February 2013 declaring that the applicant (who is the accused in CRB 3463/12) be transferred from Bulawayo Regional Magistrates Court to appear in Regional Court number 16 at Magistrate Court, Rotten Row, Harare for trial on the 23rd April 2013 which is a legal nullity and a gross violation of section 164 (3) of the Criminal Procedure and Evidence Act, section 56 (1), (2), (3) and (9) of the Magistrates’ Court Act, and section 18 (6) of the Constitution of Zimbabwe be and is hereby set aside.
- The applicant’s trial or hearing under CRB 3463/12 be conducted or held at the Bulawayo Regional Magistrates’ Court.
- Alternatively to (b) above the applicant (and any of the respondents if they so wish) be and is hereby granted leave within ten (10) days of this order to make application for directions (or review) on the procure to follow under CRB 3463/12 in light of the objections raised by the applicant to removal/extradition from jurisdiction of Matabeleland Regional Magistrate Court to Magistrates’ Court Regional Court 16, Rotten Row, Harare and provisions of section 164 (3) of the Criminal Procedure and Evidence Act, section 18 (6) of the Constitution of Zimbabwe, section 56 of the Magistrates’ Court Act and section 3 and 4 of the Administrative Justice Act. Alternatively within 10 days of granting leave to file an application for referral of his case to the Supreme Court of Zimbabwe under section 24 of the Constitution of Zimbabwe;
- The 1st respondent’s order remanding the applicant to appear in Regional Court number 16 at Magistrates’ Court, Rotten Row, Harare on the 23rd of April 2013 be and is hereby set aside and the hearing of case 3463/12 be postponed until the applicant has exercised his rights to plead to jurisdiction as set out in paragraph 2 above; and
- The respondents be ordered to pay costs of suit on an attorney – client scale if they oppose the application”.
The applicant was arrested by the Anti-Corruption Commission on 19 October 2012. He was charged, in his capacity as the Chief Executive Officer of Umguza Rural District Council, with the offence of criminal abuse of duty as a public officer as defined in section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that sometime in 2010 Zimbabwe National Road Authority (ZINARA) granted Umguza Rural District Council US$1,6 million for the reconstruction of a 12 kilometres stretch of Ilitshe Road and construction of a 60 metre bridge across Umguza River. The applicant unlawfully facilitated the release of funds to Notify Emterprises before it was contracted to carry out the rehabilitation of the road by raising false claims certifying that work and been done. When the tenders were eventually called for and applicant realised that his scheme would be discovered he abused his power as the Chief Executive Officer and caused the awarding of the tender to Notify Enterprises retrospectively.
The applicant was the Chief Executive Officer of Umguza Rural District Council which has its officers in Bulawayo. After his arrest applicant appeared in the Bulawayo Magistrate’s Court on remand on several occasions and was eventually granted bail by this court on 31 October 2012. The matter was then moved to the Bulawayo Regional Court where the applicant was supposed to be tried on 3 December 2012. However, the trial did not take place on 3 December 2012 but was postponed to 17 December 2012. Needles to say the trial did not even take place on that day, but the applicant was remanded to 20 February 2013. All those several remands were due to the fact that the Anti-Corruption Commission gave the excuse that it had not finalised its investigations and was still gathering its evidence.
On 20 February 2013 the Anti-Corruption Commission was still not ready to proceed to trial. Instead, an official from the Anti-Corruption Commission led by state counsel, took the witness stand to make an application for the case to be removed from Bulawayo Regional Magistrates’ Court and be transferred to Regional Magistrates’ Court, Rotten Row, Harare for trial on 23 April 2013.
The official alleged that he was seeking transfer of the matter to Harare because some elements of the alleged offence were done in Harare and there were four other persons whom he intended to arrest in Harare and jointly charge with the applicant. From 20 February 2013 to this day none of the alleged co-accused of the applicant has been arrested. This is over 2 years now.
Applicant’s legal representative cross-examined the Anti-Corruption Commission official. When asked to point out which particular elements of the alleged offence were done in Harare, he failed to point out even a single one. Further, when he was asked to reveal to the court the four persons in Harare he intended to arrest and charge jointly with the applicant, he was unable to do so.
The application was opposed by the applicant but the regional magistrate granted it. In granting it the court was swayed by two unsubstantiated allegations that some of the elements of the crime were done in Harare and that there were other four people in Harare who were going to be arrested and jointly charged with the applicant.
The Anti-Corruption Commission official would have pointed out the elements of the offence which were done in Harare without any problem if there was any truth in his assertions. It was not enough to just allege that some meetings or transactions involving the money in question took place in Harare. This statement is vague to say the least. It does not say what was discussed and agreed at any of those meetings. For instance the decision to grant Umguza Rural District Council the sum of US$1,6 million was made at ZINARA offices, Harare. Such a meeting would having nothing to do with the applicant abusing his powers by facilitating the release of funds to a company known as Notify Enterprises before it even won the tender and was contracted to carry out the rehabilitation of Ilitshe Road. The statement is meaningless as it fails to point out any particular element of the crime took place in Harare. There was no reason for the court to accept a baseless assertion. There was also no basis for the court to accept a nebulous story that there were some four nameless people to be still arrested and jointly charged with the applicant. As already stated above those people have not been arrested after a period of more than two years.
At no stage was it suggested that the Regional Court Bulawayo had no jurisdiction to try the applicant for the simple reason that it was the correct court to handle the matter. There was simply no basis to transfer the matter to Harare in the circumstances without the consent of the applicant granted in terms of section 56 (9) of the Magistrates Court Act [Chapter 7:10].
The learned Regional Magistrate fell into error when he based his decision on the basis of the provisions of section 95 (6) (8) (9) and (10) of the Criminal Procedure and Evidence Act [Chapter 9:07] which were repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII. That section dealt with preparatory examinations.
The learned magistrate caused the transfer of the case to Harare as requested on the basis of repealed law which is now non-existent. That was a nullity.
In the result, I would issue the following order:-
It is hereby ordered that:-
- the decision of the 1st, 2nd and 3rd respondents made and communicated on 27 February 2013 declaring that the applicant (who is the accused in CRB 3463/12) be transferred from Regional Court, Bulawayo to appear in Regional Court number 16, Rotten Row, Harare be and is hereby set aside;
- the applicant’s trial or hearing under CRB 3463/12 be conducted or held at the Bulawayo Regional Magistrates’ Court; and
- the respondents shall pay costs of suit on an attorney – client scale.
Cheda & Partners, applicant’s legal practitioners
Prosecutor General’s Office respondents’ legal practitioners