BHUNU
J: This
is an application for review in terms of s 26 of the High Court Act
[Cap
7:06]
which confers general powers, jurisdiction and authority on the High
Court to review all proceedings and decisions of all inferior courts
of justice, tribunals and administrative authorities in Zimbabwe.
The
application stems from the trial magistrate herein cited as the first
respondent's refusal
to
discharge and acquit the applicant at the closure of the state case
in terms of s
198
(3) of the Criminal procedure and Evidence Act [Cap
9;07].
The section provides that:
“(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 or charge, or any other offence of
which he might be convicted thereon, it shall return a verdict of not
guilty.”
The
background to the application is that the applicant was jointly
charged of fraud as defined in s 136 of the Criminal Law Codification
and reform Act [Cap
9:23]
together with his erstwhile legal practitioner Norman Bvekwa. The
first respondent presided over the trial in his capacity as the trial
magistrate sitting at Harare.
The
factual basis upon which the application is founded is to a large
extent not in dispute. The undisputed facts are that the State
alleged that both accused persons fraudulently wrote a letter
containing falsehoods calculated to scuttle the intended sale of a
certain piece of land between the complainant company Christmas Gift
(Pvt) Ltd and the National Social Security Authority (NSSA). Both
accused admitted writing the letter as alleged by the State. The
letter dated 16 October 2012 Annexure G at p 148 reads:
“Dear
Sirs,
RE:
OUR CLIENT – W. E . NYAMBO. SHARES IN DMC HOLDINGS (PRIVATE)
LIMITED – NEW CHRISTMAS GIFT (PRIVATE) LIMITED
We
refer to the above matter and address you at the instance of our
client W.E Nyambo.
We
understand that you want to purchase the above described property
from one Mr. de sa, who claims to be the owner of the property.
This
property does not belong to him as our client is the 100% shareholder
in New Christmas gift investments (Private) Limited.
Attempts
to reach compromises between Mr. De sa and our client have yielded
nothing.
We
demand that you stop immediately any attempts to buy this property
through the said Mr. De sa.
Please
communicate this position to us.”
At
the close of the State case Mr. Bvekwa the applicant's lawyer was
properly found not guilty and discharged on the basis that he lacked
the requisite mens
rea
to commit the offence in that he merely acted in his professional
capacity as the applicant's legal practitioner. In that capacity he
only acted as the applicant's mouth piece without attracting any
civil or criminal liability to himself. That kind of reasoning is
unassailable and cannot be faulted at all. .
The
trial magistrate in a concise but well-reasoned and convincing
interim judgment proceeded to determine that the applicant had a case
to answer because he was the principal and prime mover for the
writing of the offending letter. Evidence was led from various State
witnesses tending to establish that the letter written at the
applicant's instance and promptitude contained falsehoods and
deliberate misrepresentations calculated to prejudice the complainant
in its bid to sell its property to the National Social Security.
It
was Mr. Rogerio De sa's testimony that he holds 99% shares in
Christmas Gift (Private) Limited and the remaining 1% share is held
by his wife. He authenticated his evidence by producing the relevant
documentation in the form of the company's CR14 showing the
company's directorship and title deeds of the disputed land as
proof of ownership. His evidence in this respect found ample
corroboration in the evidence of one of the company's directors Mr.
Kizito Gweshe in every material respect.
They
both disputed that the applicant was the owner of 100% shares in the
company in dispute. It is clear as day light that the evidence of all
the state witnesses if left unrebutted can only lead to one
inexorable conclusion that the applicant's letter to NSSA was
written and communicated with fraudulent intent.
It
is an established rule of procedure in a criminal trial consistent
with the audi
alteram
partem rule, that once the state has established a prima
facie
case pointing to the likelihood of the accused being guilty of the
offence charged, the onus shifts to the accused to rebut the
operation of the evidence led against him. When placed on his defence
the accused is not being called upon to prove his innocence but to
rebut the operation of state evidence suggesting that he is guilty of
the offence charged.
The
trial magistrate was therefore correct in determining that the
applicant has a case to answer. His determination in this respect
was amply backed up by the available evidence at his disposal.
That
being the case, the applicant cannot seek refuge in the Constitution
or the High Court by way of a frivolous and vexatious application for
review. It is accordingly ordered:
-
That
the application be and is hereby dismissed.
-
That
the trial magistrate's ruling be and is hereby sustained.
Mtetwa
& Nyambirai, applicant's
legal practitioners
The
Prosecutor General, respondent's
legal practitioners.
