Criminal
Appeal
MUSHORE
J:
The
appellants were charged, tried and convicted in the Magistrates Court
of one count each of Criminal Abuse of Duty as defined in section
174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
They were each sentenced to 10 years imprisonment with 3 years
suspended for five years on conditions of good behaviour. At the time
when the offences were allegedly committed, the first appellant was
employed by Air Zimbabwe Holdings (Pvt) Ltd as the Group Chief
Executive and the second appellant was employed as the Company
Secretary and Legal Manager. It was alleged by the State that the
appellants, whilst acting in concert, wrongfully and unlawfully
appointed Navistar Insurance Brokers (Pvt) Ltd [hereinafter referred
to as “Navistar”] without going to tender as is strictly required
by law; and thereby showed favour to Navistar. The State alleged that
the appellants conduct was inconsistent with their duties as public
officers because it was required of them as public officers to have
gone to tender to invite offers from other companies.
Section
174(1)(a) of the Criminal Law (Codification and Reform) Act reads:-
“174
Criminal abuse of duty as public officer
(1)
If a public officer, in the exercise of his or her functions as such,
intentionally -
(a)
does anything that is contrary to or inconsistent with his or her
duties as a public officer; or
(b)
omits……..
for
the purpose of showing favour or disfavour to any person, he or she
shall be guilty of criminal abuse of duty as a public officer and
liable to a fine not exceeding level thirteen or imprisonment for
period not exceeding fifteen years or both.”
For
the sake of completeness, I mention that the appellants were charged
in the alternative with having contravened section 30 of the
Procurement Act [Chapter
22:14]
as read with section 5(4)(a)(2) and section 35 of the Procurement
Regulations [S.I. 171/2002] which deals with the appellants'
statutory obligation to have gone to tender in specific
circumstances, such as the circumstances of this matter. Because the
appellants were convicted in the main, the alternative charge became
immaterial.
The
first appellant raised 19 grounds against conviction and 5 grounds
against sentence in his initial notice of appeal which was filed with
this court on 21 April 2015. The second appellant raised 7 grounds
against conviction and 4 grounds against sentence in her initial
notice of appeal which was filed on 16 April 2015.
On
1 September 2015, roughly five months after the initial notices of
appeal were filed, the appellants both filed notices of amendments to
their grounds of appeal. The first appellant announced his intention
to add a further 4 grounds to his 19 initial grounds of appeal
against conviction. The second appellant sought to add a further 3
grounds to her initial 7 grounds of appeal against conviction.
It
is noteworthy to mention that the first and second appellants'
proposed additional grounds were identical in all respects.
On
the day of the appeal hearing, counsel for both appellants' got up
to introduce their new notices of appeal; and to move for their
amendments to be adopted.
The
respondent's counsel objected to the amendments being allowed to be
introduced and raised 4 reasons why his objection ought to be upheld.
1.
The first point he raised in objection was that that both the
appellant's grounds of appeal in their original notices of appeal,
were not in compliance with Rule 22 subrule 1 of the Supreme Court
(Magistrates Courts) (Criminal Appeals) Rules S.I. 504 of 1979.
2.
The second point was that the first appellant's Heads of Argument
are not compliant with Rule 238(1) of the High Court Rules, 1971 in
that they are long-winded and convoluted and did not serve the
purpose for which they were intended. The respondent's counsel
suggested that the appellants ought to withdraw the appeal from the
roll and ask for an extension of time within which to prepare proper
heads of argument.
3.
The third point was the amended grounds for both counsel were filed
out of time and that neither of the appellants had made the requisite
application for condonation. Further he submitted that because both
of the appellants' original notices of appeal grounds constitute a
nullity and did not comply with the rules, the amended grounds could
not be canvassed or relied upon.
4.
The fourth point was that the appellants were estopped from raising
the point of law which was being raised through the amendment, on the
basis that it was being canvassed for the first time on appeal.
Whether
there has been a lack of compliance with Rule 22(1) of the Rules?
At
the commencement of the hearing the first appellant withdrew grounds
7, 9, 10, 11, 12, 13, 14, 16, 17 and 18 from his original notice of
appeal against conviction. Thus the first appellant retained grounds
1–6, 8 and 15 of the original notice of appeal. The first
appellant's counsel submitted that the remaining grounds were in
compliance with the Rules. Grounds 1 - 6, 8 and 15 read as follows:-
r
page 1 – 13
“Grounds
of Appeal (1st
appellant)
Ad
conviction
1.
The court a
quo
erred in fact and in law in convicting the appellant of abuse of duty
as a public officer on the basis of the State having proved its case
against him beyond any reasonable doubt yet the State had made a
concession that it had not satisfied the burden of proof required in
a criminal trial against the appellant and that it had no direct
evidence linking the appellant to the offence but circumstantial
evidence which evidence was clear not enough to satisfy the onus of
proving its case against appellant beyond any reasonable doubt.
2.
The trier of fact erred in fact and in law when it convicted the
appellant on the basis of evidence of the co-accused person, Grace
Pfumbidzai, whom it not find to be a credible witness as she had
given a plethora of mutually destructive defences to the charges.
Thus the court a
quo
erred in fact and at law in basing a conviction on inadmissible
evidence of another accused's extra-curial statement without
ensuring that the rules of admitting such evidence and ultimately
relying upon it had been satisfied.
3.
The trial court grossly misdirected itself in fact and at law when it
convicted the appellant yet there was no nexus
between
the appellant and the essential elements of the offence more
particularly that there was no evidence at all that the appellant
individually or in connivance with the other accused intentionally
and without going to tender appointed Navistar on the 18th
March 2009 as the Air Zimbabwe Holdings (Pvt) Limited's Local
Aviation Insurance Brokers.
4.
The court a
quo
erred at law and in fact in relying on evidence from witnesses who
were not credible and whose evidence was materially conflicting and
contradicting. The trial court relied on the evidence of one Nyakabau
a shopped witness who gave contradictory evidence and whose evidence
was clearly a recent fabrication as it materially contradicted Grace
Pfumbidzayi's evidence in relation to how the alleged presentation
and/or meeting involving Navistar, FBC and Coleman had been held or
conducted.
5.
The court a
quo
erred in fact and at law when it found that the appellant was
involved in the appointment of Navistar on the 18th
March 2009 yet it found as a matter of fact that the appointment of
Navistar was not an Executive Management decision and that Grace
Pfumbidzayi had lied that Appellant had told her to appoint Navistar
in the presence of one Norbert Machingauta. The Court in fact that
appointment was done by Grace telephonically and confirmed by her
letter of March 18, 2009.
6.
The trier of fact erred in facts and at law when it inferred that the
appellant by writing “Grace, for your relevant action' meant she
had to process the appointment which 'inference' is not supported
by any positive proved facts in that by the 21st
March 2009, Navistar had already been appointed and logically the
appellant could not have retrospectively sanctioned the appointment
of Navistar Insurance Brokers (Pvt) Ltd.
8.
The trier of fact erred fundamentally in fact and at law in finding
that as a matter of fact the Appellant had held a meeting attended by
Marsh Insurers Brokers, ZIMRE and Grace Pfumbidzayi on or about the
17th
March 2009 yet there was no evidence led in Court showing that there
was such a meeting held by the said parties prior to the 20th
March 2019. The court a
quo
erred in fact and at law in failing to appreciate that Exhibit 15
written by Sam Nyamhamba clearly showed that the only meeting
involving the four parties had been held on the 20th
March 2009 and not before that date as found by the trier of fact.
15.
The trial Magistrate erred in fact and at law when she found that the
Appellant was not credible witness yet his evidence was independently
corroborated by other witnesses whom the court found to be credible
and that other documentary exhibits relied upon by the court as well
as that the Appellant had been very steadfast in his defence even in
the face of intense cross examination.”
The
grounds which remain and, which I have paraphrased above, consist of
an attack on findings of fact rather than raising points of law as is
required when taking a decision up on appeal. To that end they are
fatally flawed.
The
second appellant's notice of appeal is also fatally flawed. Her
notice of appeal is crafted in the format of Heads of Argument
complete with references to case law as one would expect from Heads
of Argument. Second appellant's original notice of appeal also
fails to identify errors on points of law, but, instead, as is the
case with the first appellant in it she makes numerous of attacks on
the court a
quo's
findings of fact.
record
p 14-17
“GROUNDS
OF APPEAL AGAINST CONVICTION (Second appellant)
1.
The learned Magistrate misdirected herself at law by failing to adopt
the correct judicial assessment of all the evidence adduced in the
trial. See
S
v Tambo
2007
(2) ZLR 32 [H]
“the
correct judicial assessment of evidence must be based on establishing
proved facts whose proof must be a result of a careful analysis of
all the evidence led.”
2.
The learned magistrate misdirected herself at law when she concluded
that Budhama Chikamhi the auditor was a credible witness and yet he
stood to gain financially from testifying against the Appellant in
the trial. See S
v Tsvangirai
2004
(2) ZLR 210 (S).
3.
The learned Magistrate misdirected herself on the facts when she
concluded that Appellant was aware from mid-February 2009 that the
airline's fleet was uninsured and yet unchallenged evidence from
March Insurance Broker's Chief Executive Mr Nyamhamba was that both
the broker and the insured only realised this fact on the 17th
March 2009 through a communication from Willis directed through
Zimre, the re-insurer.
4.
The learned Magistrate misdirected herself on the facts or law when
she made a finding that the realization that the airline's fleet
was uninsured by the 17th
March 2009 did not constitute a crisis or emergency and that was
inconsistent to the evidence adduced by the prosecution.
5.
The learned Magistrate erred or misdirected herself at law when she
failed to appreciate that s 30 (2) of the Procurement Act [Chapter
22:14]
was meant to provide a safety valve to enable State procurement
agencies to procure commodities expeditiously to the benefit of the
State and the nation at large in times of dire need and emergencies
as was the case herein without following the cumbersome time
consuming normal tender procedure. See
S
v
Mangoma
2011 (1) ZLR 617 [H].
6.
In determining whether Appellant abused her office as a public
officer, the learned magistrate erred or misdirected herself by
omitting to consider the motive and surrounding circumstances behind
the appointment of Navistar Insurance Brokers (Pvt) Ltd. See
S
v
Mangoma
2011 (1) LR 617 (11) at 623.
Thus,
the essential element of showing favour to Navistar Insurance Brokers
(Pvt) Ltd was not proved. Consequently there was insufficient
evidence to prove beyond reasonable doubt that the Appellant was
guilty of the crime charged.
7.
The learned Magistrate erred or misdirected herself at law by
dismissing the Appellant's explanation that the appointment of
Navistar Insurance Brokers (Pvt) Ltd was an act of necessity to avert
operating an airline illegally/unlawfully due to lack of aviation
insurance. See
S
v
Mupatsi
2010 (1) lR 529 [H].
“No
onus rests on an accused to convince the court of the truth of any
explanation which he gives. If he gives an explanation, even if that
explanation is improbable, the court is not entitled to convict
unless it is satisfied that not only is the explanation is
improbable, but beyond reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is
entitled to his acquittal”
Of
the above grounds of appeal, it was only ground 5 which appears to be
an attempt in raising a point of law. However the ground is neither
clear nor is it specific and when reading it one is left wondering
what the cause for complaint is. It leaves the court without a clue
as to the misdirection/s by the court a
quo's.
Thus the second appellant's initial notice of appeal is fatally
flawed. That being the case in respect of both the appellants, there
were no appeals before the court on the hearing date.
Neither
of the appellants sought condonation for the late filing of their
amended grounds, and on that basis alone the notices of amendments
themselves are not properly before the court.
The
appellants submitted that it is competent to apply for condonation at
the hearing of the matter.
However
the question is whether or not a fatally defective notice of appeal
can be amended. The legal position is that if the original notices of
appeal are defective, then there is no appeal before the court. If
there is no appeal before the court, then the matter ends there. It
is not possible to amend or to seek condonation of a fatally
defective notice of appeal. In Hama
v
National Railways 1996
(1) ZLR 664 (SC) the Supreme Court found that if a notice of appeal
is fatally defective, then it is incapable of being amended for being
incurably bad.
Mr
Mpofu
for the first appellant sought to persuade us that the decision in
Hama's
case supports his contention that he can competently apply for
condonation.
However
the Hama
case is distinguishable from the present matter in that in Hama
the party who moved the amendment withdrew its first notice of
appeal; thus presenting the amended notice of appeal as a belated
notice of appeal as opposed to an amendment of the original notice of
appeal. The Supreme Court in accepting that the original notice of
appeal had been withdrawn then regarded the amended notice of appeal
as being the only notice of appeal and accordingly treated the notice
of amendment as a belated notice of appeal for which condonation
could be sought.
In
casu
the appellants are asking us to cause the original grounds cited in
the initial notice of appeal to be added to by the new grounds
because they are not abandoning their original notices of appeal. As
I mentioned earlier the initial notices of appeal filed by the
appellants are fatally flawed. In asking us to allow them to add new
grounds to a fatally flawed notice of appeal, we find simply that the
appellants are not entitled to add to something which is incurably
bad.
Furthermore,
it is important to recognise that in the Hama
case, the court was applying its mind to the civil rules of the High
Court and the various portions dealing with condonation. Mr Mpofu
suggested
that the measure for competently settled grounds of appeal is that if
they are 'concise'; then they're sound. The authority for his
proposition was a Supreme Court judgment in the matter of Econet
Wireless (Pvt) Ltd v
Trustco Mobile (Proprietary) Ltd and Anor
SC43/13.
However,
his submission is not applicable to the current set of circumstances
because in the Econet was focused on the rules for Civil Appeals and
not Criminal Appeals. The requirement in criminal appeals is that the
grounds be outlined in a 'clear and specific' manner in terms of
Rule 18 of the Rules of the Supreme Court, 1964 and Rule 22 910 of
the Supreme Court (Magistrates' Court) (Criminal Appeals) Rules,
1979 as opposed for the requirement that the grounds be framed in a
'concise' manner per Rule 32(1) of the Rules of the Supreme
Court, 1964 which applies to Civil Appeals.
In
casu
the manner of appealing is governed by a number of rules which are
very specific in guiding the parties as to what is and what isn't
permissible.
Rule
6 of the Supreme Court (Magistrate Court) (Criminal Appeals) Rules,
1979 reads as follows:-
“6.
Amendment of notice
(1)
The Attorney-General or an appellant as defined in Part V, VI, VII or
VIII may amend his notice of appeal by lodging a notice in duplicate
with the Registrar setting out clearly and specifically the amendment
to the grounds of appeal -
(a)
in the case of an appeal against conviction and sentence, as soon as
possible and in any event not later than twenty days after the noting
of an appeal;
(b)
in the case of an appeal against sentence only…………..”
In
the present matter, the notice of amendment was handed up at the
hearing of the appeal so the court and the respondent only laid eyes
on it for the first time on the hearing date on 28 March 2016, some
eleven months after the original notice was filed; and thus well
beyond the time limits mentioned in Rule 6 subrule 1(a). The notices
of amendment were neither preceded by nor accompanied with any
applications for condonation. Instead both the appellants counsel
attempted to make them part of their original notices of appeal.
The
rules are peremptory.
In
the instances of a criminal appeal, the trial court must comment upon
the decision taken to appeal against its ruling and the reasons for
challenging his or her finding. [See Dube
J's
instructive analysis in Christopher
Nyamukapa v
The State
HH 60/2012)].
However
in
casu,
the Magistrate concerned had no knowledge that additional grounds had
been raised by the appellants for challenging his/her ruling.
Further,
Rule 28 requires that the magistrate who dealt with the matter should
make a statement on the grounds of appeal within four days of the
appeal being noted, after which the Clerk of Court is required to
remit the statement to the Registrar of the High Court for forwarding
to the Supreme Court for an appeal certificate. Rule 28 reads:-
“28.
Response by magistrate to notice of appeal
(1)
The magistrate may, within four days of the noting of an appeal in
terms of Rule 27, deliver to the Clerk of the court a statement
containing any comments which he may wish to make on the grounds of
appeal.
(2)
The clerk of the court shall, as soon as he receives any statement
referred to in sub rule (1) and in any event not later than five days
after the noting of the appeal in terms of Rule 27; send to the
Registrar the record of the proceedings of the case together with any
statement referred to in subrule (1).”
Thereafter
the documents mentioned in Rule 28(2) are then forwarded to the
Supreme Court for the issuance of a certificate. The magistrate is
then required to respond to the granting of a certificate in
accordance with Rule 30:-
“30.
Response of magistrate to granting of certificate
(1)
the magistrate shall, within five days of notification in terms of
paragraph (a) of subrule (2) of rule 29, so far as may be necessary
having regard to any judgment or statement filed of record, deliver
to the clerk of the court a statement in writing setting forth the
facts which he found to be proved and his reasons for judgment and
sentence and dealing with the grounds of appeal; and such statement
shall become part of the record”.
Neither
Rules 6, 28 and 30 have been mentioned by both appellants, and there
has been no explanation given why that is so.
It
is disheartening to see counsel pay little attention to the rules
which they should refer to when they prosecute their appeals. The
notices of amendment cannot be made in a rushed manner and then
expect to pass without a strict observance of the rules.
Besides
that, the appellants are trying to cure fatally defective grounds
through the unprocedural filing of amendments. Fatally defective
grounds can never be amended. The appeals were void ab
initio.
In
any event, the point sought to be introduced through the amended
notice, i.e. the defence that the appellants were not public officers
at the time the offences were committed, was never raised a
quo.
In fact a
quo
both appellants accepted that they were public officers at the time
that the offences were committed. The appellants cannot suddenly
introduce a new defence on appeal.
The
Heads of Argument filed by both the appellants do not comply with the
clear and strict provisions requirement laid out in Rule 238(1)(a) of
the High Court Rules 1971 both in form and content. They are
voluminous and not in a good way. They are rambling narratives which
give a factual point of view the way that the appellants would have
wanted the court a quo to analyse the facts. Both the appellants'
heads of argument are of no assistance to the court. They are not
clear. No points of law are made neither do they cite any
authorities. Accordingly in terms of Rule 238(2) of the High Court
Rules, 1971 the appellants are deemed to be barred.
It
is for all of the above reasons that we find that both appeals must
fail. Accordingly we order as follows:
“First
and second appellants appeals are dismissed with costs.”
HUNGWE
J agrees……………
