DISTRIBUTABLE
(54)
Judgment
No. SC 75/04
Crim.
Appeal No. 203/03
(1)
GOODWILL MUPAMBWA (2) FRANCIS PINTU
v
THE STATE
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
ZIYAMBI JA & GWAUNZA JA
HARARE,
SEPTEMBER 14, 2004
N
P Goneso, for the
appellants
R
K Tokwe, for the
respondent
SANDURA JA: The
appellants were charged with contravening para 39(2)(a) of the
First Schedule to the Defence Act
[Chapter 11:02]
(the Act). The allegation against each appellant was that on
thirty-three occasions during the period extending from December
1999
to August 2002 he defrauded the State by withdrawing a pension from
the war veterans fund, well knowing that he was not entitled
to it as
he was not a war veteran. Both appellants were regular members of
the Air Force of Zimbabwe.
On 16 January 2003 the
appellants appeared before a General Court Martial and pleaded not
guilty to all the thirty-three counts
of fraud. They were, however,
found guilty as charged after a trial had been conducted, and were
sentenced to, inter
alia, one years
imprisonment with labour. Aggrieved by that result, they appealed
to this Court against conviction and sentence.
On
13 September 2004, the day before the appeal was due to be
heard, I requested the registrar of this Court to contact both
counsel and inform them that at the hearing of the appeal they would
be required, first of all, to deal with a preliminary point,
which
was whether the appeal was properly before this Court, in view of the
provisions of ss 78 and 79 of the Act, as amended by
Part XIII
of the Schedule to the Magistrates Court Amendment Act, No. 9 of
1997 (the Amendment Act).
When the appeal was called on
14 September 2004 Mr Tokwe,
who appeared for the respondent, handed in the respondents heads
of argument on the preliminary point, in which he submitted,
quite
correctly in my view, that in terms of s 79(1) of the Act as
amended the appeal should be heard by a Court Martial Appeal
Court
consisting of such judges of the High Court, not being less than two,
as the Judge President of the High Court may appoint.
Ms Goneso,
who appeared for the appellants, agreed with that submission.
Consequently, as we were in full agreement with counsels
submission,
the appeal was struck off the roll. I now set out the
full reasons for that decision.
Before
the Act was amended by the Amendment Act, which was promulgated and
came into effect on 10 October 1997, the words Appeal
Court,
appellant and judges were defined in s 78 of the Act
as follows:
Appeal
Court means the Court Martial Appeal Court established in terms of
section seventy-nine;
appellant
means a person who has been convicted by a court martial and desires
to appeal under this Part;
judges
means the Chief Justice and the other judges of the Supreme Court.
And,
before it was amended by the Amendment Act, s 79(1) of the Act
read as follows:
There
shall be a Court Martial Appeal Court which shall consist of such
judges, not being less than two, as the Chief Justice
may from time
to time appoint.
Consequently, before 10 October
1997 any person appealing against the judgment of a Court Martial
appealed to a Court Martial
Appeal Court, consisting of such judges
of the Supreme Court, not being less than two, as the Chief Justice
appointed. See S v
Mugoni 1994 (2) ZLR
184 (A) at 186E.
However,
the Amendment Act altered the definition of judges in s 78
and the composition of the Court Martial Appeal Court
established in
terms of s 79(1) of the Act. In addition, it introduced a new
section, s 88A.
The
definition of judges in s 78, as amended, is as follows:
judges
means the Judge President and the other judges of the High Court.
Section 79(1),
as amended, in terms of which the Court Martial Appeal Court is
established, now reads as follows:
There
shall be a Court Martial Appeal Court which shall consist of such
judges, not being less than two, as the Judge President
may from time
to time appoint.
Section 80(1),
which deals with appeals from a Court Martial, and which was not
altered by the Amendment Act, reads as follows,
in relevant part:
Subject
to this section, an appellant may appeal against conviction to the
Appeal Court
.
As
already indicated, Appeal Court means the Court Martial Appeal
Court established in terms of s 79(1).
Finally,
s 88A, which makes provision for appeals from the Court Martial
Appeal Court to this Court, reads as follows:
An
appeal shall lie to the Supreme Court from any judgment, decision or
order of the Appeal Court in all respects as if the judgment,
decision or order were given in a criminal appeal before the High
Court.
Thus,
after 10 October 1997 any person intending to appeal against the
judgment of a Court Martial would appeal to the Court
Martial Appeal
Court consisting of such judges of the High Court, not being less
than two, as the Judge President of the High Court
may from time to
time appoint.
If
such a person felt aggrieved by the judgment, decision or order of
the Court Martial Appeal Court and intended appealing against
it, he
would appeal to this Court in terms of s 88A of the Act.
In
the circumstances, since s 79(1) as amended provides that the
Court Martial Appeal Court shall consist of such judges of
the High
Court as the Judge President of the High Court may from time to time
appoint, this appeal was not properly before us and
had to be struck
off the roll.
ZIYAMBI
JA: I agree.
GWAUNZA
JA: I agree.
Goneso
& Associates,
appellants' legal practitioners