DISTRIBUTABLE (10)

Judgment No. SC 12/05

Civil Appeal No. 46/05

CHRISTOPHER TICHAONA KURUNERI v THE STATE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE, MARCH 17 & APRIL 5, 2005

G Chikumbirike, for the appellant

M Nemadire, for the respondent

MALABA JA: This is an appeal against the judgment of the High Court (HUNGWE J) delivered on 18 February 2005 dismissing an application by the appellant to be admitted to bail on the ground that new facts had arisen since the refusal by BHUNU J on 8 November 2004 to admit him to bail. The appellant had also alleged that he had a right to be released from custody unconditionally or upon reasonable conditions in terms of s 13(4)(b) of the Constitution of Zimbabwe, as reasonable time in which he could be lawfully detained without trial had elapsed.

In this appeal we consider the correctness or otherwise of the decision of the court a quo that no new facts had arisen which had not been placed before BHUNU J when he determined the application by the appellant to be admitted to bail on 8 November 2004.

The appellant has made an application in terms of s 24(1) of the Constitution of Zimbabwe alleging that his right, as enshrined in the Declaration of Rights, to be released from custody unconditionally or upon reasonable conditions, not having been tried within a reasonable time, is being violated. The question whether reasonable time in which the appellant could be lawfully detained without trial has expired is therefore pending determination by this Court sitting as a Constitutional Court.

I now turn to the facts of the case to determine the question whether the refusal to admit the appellant to bail was correct.

The appellant is a Minister of Finance, businessman and commercial farmer. On 26 April 2004, he appeared before the Magistrates Court charged with four counts of contravening the Exchange Control Act [Chapter 22:05] and one count of contravening s 21(3) of the Citizenship of Zimbabwe Act [Chapter 4:01]. He was remanded in custody awaiting trial.

The allegations against the appellant on the charges arising from the contravention of the Exchange Control Act were, that during the period extending from March 2002 to the time of his arrest, he had acquired, in Zimbabwe, foreign currency amounting to US$582 611,99, British Pounds 34371,00 and Euro 30 000 from persons other than authorised dealers. The State alleged that the appellant exported the said foreign currency to South Africa where he gave it to one Christopher Heyman the Director of Venture Projects and Associates, a company contracted by him to manage his businesses in that country.

It was alleged that part of the foreign currency illegally exported to South Africa was used to purchase a Mercedes Benz motor vehicle for R547 734. Three residential properties were bought, namely No. 38 Sunset Avenue Llandudno, Cape Town, valued at R2.7 million and a house and a flat valued at R2.5 million each. It was further alleged that on 6 March 2002 the appellant, being a Zimbabwean resident, unlawfully caused a Zimbabwean bank, that is to say the Jewel Bank, to transfer R5.2 million to CB Niland and Partners who were his lawyers in South Africa as payment for the purchase of an immovable property at No. 17 Apostle Road Llandudno, Cape Town. All the immovable properties were registered in the name of a company known as Choice Decisions 113 (Private) Limited, of which the appellant is the sole director. He also had R 1300 000 in a bank account in South Africa.

On the count arising from the contravention of the citizenship of Zimbabwe Act, it was alleged that the appellant, being a citizen of Zimbabwe and a holder of a Zimbabwe Diplomatic Passport, was also a holder of a Canadian passport. The allegation was that during the period extending from 19 September 2003 to January 2004, on various specified dates and without the written permission of the Minister of Home Affairs, the appellant made use of the current Canadian passport to travel to South Africa.

The appellant did not deny that he placed the amount of foreign currency in the hands of the person mentioned in the charge nor did he dispute the fact that part of the foreign currency was used to purchase the immovable properties. What he denied was the allegation that he obtained the foreign currency in Zimbabwe from persons other than authorised dealers. It was his defence that the foreign currency was paid to him by one Luiz Solano in April 2002 as fees for consultancy services rendered by him to a firm known as Filipe Solano 51 during the years 1976 to 1981 when he resided in Canada. The allegation was, therefore, that the foreign currency was part of “free funds” earned by him outside Zimbabwe. There was no explanation as to why the foreign currency for services rendered in the years from 1976 to 1981 was only paid to the appellant in April 2002. Nor was any documentary evidence produced to confirm the payment of such large sums of foreign currency in hard cash.

The appellant did not deny that he was in possession of the Canadian passport which he made use of in circumstances which amounted to a contravention of the Citizenship of Zimbabwe Act.

On 11 May 2004 the appellant made an application to the High Court to be admitted to bail. Having considered the nature of the offence and the punishment likely to be imposed on the appellant upon conviction, HLATSHWAYO J who heard the application, was of the opinion that had the appellant been charged only with the contravention of s 21(3) of the Citizenship of Zimbabwe Act and the contravention of the Exchange Control Act arising from causing Jewel Bank to transfer R 5.2 million to CB Niland and Partners, he would have been entitled to be admitted to bail.

On the remaining charges arising from the alleged contravention of the Exchange Control Act, the learned judge refused to admit the appellant to bail on the ground that there was a likelihood of him absconding and not standing trial should he be admitted to bail. The adverse factors considered in balancing the interests of justice and the right of the appellant to liberty were the seriousness of the offences; the enormity of the amounts of foreign currency involved, the severity of the sentences of imprisonment likely to be imposed on the appellant upon conviction; the substantial wealth possessed by the appellant outside the country; the residence of the appellant's family in Canada; the absence of an extradition treaty between the two countries and the strength of the State case.

The favourable factors considered were the presumption of innocence, ownership of immovable properties by the appellant in Zimbabwe; his business interests in the country; the assurances given by him that he would not abscond if admitted to bail; the status of the appellant as a Minister of Finance and his willingness to submit himself to the most stringent bail conditions. An appeal against the decision of HLATSHWAYO J was dismissed on 17 June 2004 in case SC 40/04.

On 2 November 2004, a second application to be admitted to bail was made by the appellant to the High Court in terms of s 116(1)(c)(ii) of the Criminal Procedure and Evidence Act [Chapter 9:07] on the ground that new facts which had not been placed before HLATSHWAYO J had arisen. The allegation was that investigations which the police had indicated that they wanted to undertake in Spain on the issue of the payment of foreign currency to the appellant, had not yielded results which strengthened the State case. It emerged, however, that the investigations had established that the person by whom the appellant claimed to have been paid the foreign currency in April 2002 had in fact died on 13 October 2001. The discovery of this fact strengthened the State case and weakened the appellant's defence to the charges.

On 8 November 2004 BHUNU J heard the second application by the appellant to be admitted to bail. The learned judge found that no new facts had arisen which tilted the scales in favour of admitting the appellant to bail. About six weeks later, the appellant made a third application to the High Court to be admitted to bail in terms of s 116(1)(c)(ii) of the Criminal Procedure and Evidence Act.

It was known to the appellant’s legal practitioner at the time the second application to be admitted to bail was placed before BHUNU J, that in April 2004 the Attorney General had requested assistance from the appropriate authority of South Africa in the criminal matters involving the appellant in terms of the Criminal Matters (Mutual Assistance) Act [Chapter 9:06]. The Attorney General’s representative said that the assistance requested was for investigations to be conducted on the activities carried out by the appellant in South Africa in relation to the charges preferred against him.

In a letter dated 13 December 2004 addressed to the Attorney General’s representative, the appellant’s legal practitioner assumed without any factual basis, that the assistance requested by the Attorney General from the appropriate authority in South Africa was to have an application made to the courts in that country for interdicts restraining the appellant from dealing with or disposing of the immovable properties as well as the foreign currency held in bank accounts in that country. The letter reads in part;

“My visit to your office on the 8^th of November 2004 refers.

I put on record that you confirmed to me that the Attorney-General has sought the assistance of the South African authorities in the on going investigations in Dr Kuruneri’s case. I can only assume that the request was in terms of section 10(a) of the Criminal Matters (Mutual Assistance) Act [Chapter 9:06]. You were however not in a position to shed any further light on the issue as some of the information may be confidential (understandably) or was not known to you (the proceedings being conducted out of the country). You however indicated that the Asset Forfeiture Unit in South Africa was involved in the evidence gathering. This, to you, seemed to give different dimension to the inquiry.

From my end, I am of the view that this new development, the invocation of the Criminal Matters (Mutual Assistance) Act gives a new dimension consequently new circumstances emerge which were not placed before the judge who determined the previous application and which have arisen after that determination”.

As indicated above the invocation of the Criminal Matters (Mutual Assistance) Act was not a fact which had not been placed before BHUNU J. Section 10(1)(a) gives the Attorney-General a discretion to request an appropriate authority of a foreign country to arrange for evidence to be taken in the foreign country for the purposes of proceedings in relation to a criminal matter in Zimbabwe. Notwithstanding the fact that he believed that the assistance requested by the Attorney General was for the appropriate authority to arrange for evidence to be taken in that country for purposes of proceedings in the appellant’s case in Zimbabwe, the appellant’s legal practitioner founded the application to be admitted to bail on the ground that the assistance requested from the appropriate authority was for the interdicting of the appellant from dealing in or disposing of the immovable properties and foreign currency in bank accounts or freezing of those assets in South Africa.

HUNGWE J heard the third application by the appellant to be admitted to bail. The learned judge held that the State case had not been weakened by what had happened during the period extending from 8 November 2004 to 18 February 2005. He said:-

“The change in applicant’s circumstances have been for the worst. The affidavit by Assistant Commissioner Mangoma indicates that the South African inquiry has not concluded. What it may yield is anyone’s guess but for the purpose of the application it cannot advance his cause. Besides if one of his defences has been proved to be false the inference must be that he is not being truthful with the investigations. Given his stature a lie told to investigations tends to cast him in bad light with the courts hence the conclusion by this court that he cannot be trusted”.

This Court will only interfere with the decision of the learned judge if an irregularity or misdirection has been committed or if his discretion has been exercised in an unreasonable or improper manner. (See S v Chimanikire 1986 (2) ZLR 145 (S); Makamba v State SC 20/04).

No irregularity was committed in the proceedings nor was any misdirection committed by the learned judge on the applicable principles. He appreciated that the principle governing the determination of an application to be admitted to bail in terms of s 116(1)(c)(ii) of the Criminal Procedure and Evidence Act was that the facts on which the application was based should not have been before the judge who determined the previous application because they would have arisen or been discovered after that determination. He was also aware of the fact that he was required, in the determination of the application, to consider the effect of the new facts on the previous decision that the accused person was likely to abscond and not stand trial if admitted to bail. The learned judge was aware that the new facts had to be weighed in the context of the adverse factors and favourable factors put in the scales of justice in the determination of the previous application. See State v Aitken (2) 1992 (2) ZLR 463 (S) at 467 E – 468 A.

The determination by the learned judge that the facts alleged by the appellant to have arisen after the determination of the previous application when weighed in the context of other relevant factors, both adverse and favourable to him did not tilt the scales in his favour, is not an unreasonable decision. The proceedings allegedly instituted by the appropriate authority of South Africa as a result of the request made by the Attorney General in April 2004 in terms of the Criminal Matters (Mutual Assistance) Act, have not yielded results the effect of which was the reduction of the risk of the appellant absconding and not standing his trial if admitted to bail.

No interdict restraining the appellant from dealing with or disposing of the immovable properties and foreign currency in bank accounts in South Africa has been issued. The substantial wealth held by him in that country is still under his ownership and control. The realisation that he can still have access to these resources may induce him to abscond, especially when regard is had to the fact that he is aware that his explanation as to the source of the foreign currency, namely, that it had been paid to him by Luiz Solano as hard cash in April 2002, has been discredited by the establishment of the fact of the death of the latter on 13 October 2001.

I need to stress here that we did not find it necessary to determine the correctness of the decision by the learned judge to dismiss the application by answering questions of misdirection allegedly committed by the learned judge on whether or not reasonable time in which the appellant could be lawfully detained without trial had expired.

Apart from the fact that that question is now pending determination by the Constitutional Court, the learned judge did not in effect make a decision on the matter. Whilst he unequivocally stated in the body of the judgment that “in all the circumstances” of the case he was “unable to say that the delay has been so unreasonable as to entitle” the appellant “to the order of release”, the learned judge later made a statement the effect of which was to contradict his earlier finding on the same question as to whether reasonable time had expired. He said;

“Had not the applicant faced the extra charge involving the holding of a foreign passport I would not have hesitated to come to the conclusion that the delay in bringing him to trial had become unreasonable and that he be released on reasonable conditions”.

Mr Chikumbirike was on firm ground in arguing that the learned judge misdirected himself in placing any weight at all on the possession by the appellant of a current passport issued in his name by the government of a foreign country in light of the decision by HLATSHWAYO J on the matter. The existence of two contradictory findings of fact on the same question however remained unresolved. The effect of the contradiction is that no finding of fact was made on the question whether reasonable time in which the appellant could be detained without trial had expired.

The attack upon the determination of the application by the appellant to be admitted to bail in terms of s 116(1)(c)(ii) of the Criminal Procedure and Evidence Act was accordingly the only matter considered in this appeal. It is without merit.

The appeal is accordingly dismissed.

CHIDYAUSIKU CJ: I agree

ZIYAMBI JA: I agree

Chikumbirike & Associates, appellant's legal practitioners

The Attorney General’s Office, respondent's legal practitioners