MATANDA-MOYO
J:
Applicant
at the onset of the proceedings raised two preliminary points.
Firstly he submitted that there was no opposition by the respondents
before me. The respondents filed a notice of opposition on 23 July
2013. An opposing affidavit by Rodgers Kachambwa was filed together
with the notice of opposition.
I
shall quote the opposing affidavit verbatim;
“IN
THE MAGISTRATES COURT CRB No. R 847/12 FOR THE EASTERN DIVISION CASE
No HELD AT HARARE In the matter between: LEE WAVERLY JOHN APPLICANT
vs THE STATE 1st RESPONDENT SIMON ROGERS KACHAMBWA NO 2ND RESPONDENT
_____________________________________________________________________
OPPOSING AFFIDAVIT
_____________________________________________________________________
I
have gone through the application for review of the court proceedings
up to the close of the case for the State and my ruling I made in
favour of the State.
The
application is opposed in its entirity. The review cannot shop the
resumption of the trial. I will refer to the Applicant and his lawyer
to the case of Attorney General v Makamba SC74/04 dated 30 August
2004 which is clear on the applications similar to the one before me.
Sworn
before me this 16 day of July 2013
_______________________________
Deponent
________________________________
Commissioner of Oaths.”
Counsel
for applicant submitted that that the above affidavit refers to a
matter in the Magistrate Court and has no bearing on the present
case.
Substantively
there is nothing in the affidavit I agree with applicant's
submissions. The affidavit was written for a matter before the
Magistrate Court. It is not meant for this matter. Again the contents
of the affidavit do not state the reasons why the application is
opposed. There are no factual averments therein. The ruling by the
magistrate has not been properly admitted into evidence. If such
ruling was to be an annexure to the opposing affidavit then, it must
be properly referred to in that affidavit. It was my finding
therefore that there was no opposing affidavit filed.
Without
such opposing affidavit no heads can be filed.
Again
counsel for applicant argued that the respondents are barred.
Respondents
were served with applicant's heads of argument on 23 September
2013. The respondents had up to 7 October 2013 to file their heads.
They did not do so. Respondents filed their heads on 27 February
2014. Such heads were filed without condonation from this court.
I
found that indeed respondents were barred. Without condonation having
been made by this court respondents could not be heard. I then
proceed to hear applicant on the merits.
Applicant
sought a review of the second respondent's decision placing
applicant on his defence on the following grounds;
“1.
The irrationality or outrageousness of the 2nd respondent's
decision of dismissing the Applicant's application for discharge at
close of State case when the evidence led in court clearly show that
the State failed to prove a prima facie case against the applicant.
Put differently 2nd Respondent dismally failed to objectively
consider the evidence which clearly exonerated the applicant from any
wrong doing.”
The
brief background to the matter is that the respondent pleaded not
guilty before the Magistrates Court to a charge of fraud as defined
by section 136 of the Criminal Law (Codification and Reform) Act [Cap
9:23]. At the conclusion of the State case the respondent applied for
discharge in terms of section 198(3) of the Criminal Procedure and
Evidence Act [Cap 9:07]. The application was dismissed.
He
now seeks review of that decision.
Generally
it is not desirous for a higher court to interfere in an incomplete
trial before an inferior court. John Reed–Rowland in his book
Criminal Procedure in Zimbabwe says about this on p 26;
“The
High Court's statutory power of review can be exercised at any
stage of criminal proceedings before an inferior court. However, in
uncompleted cases this power should be sparingly exercised. It would
only be appropriate to do so in those rare cases where otherwise
grave injustice might result or justice might not be obtained. For
example, if grave irregularity or impropriety occurred in the
proceedings, it would be appropriate for the High Court to consider
the matter. Generally however, it is preferable to allow the
proceedings to run their normal completion and seek redress by means
of appeal or review.”
Section
29 of the High Court Act [Cap 7:06] gives the High Court extensive
review powers in criminal proceedings of the Magistrates Court. Such
powers are exercisable at any stage of the hearing. However as stated
above such powers should be used sparingly whilst proceedings are
still incomplete so as to discourage the overflow of the High Court
with incomplete proceedings of the Magistrates Court.
The
High Court should not usurp or interfere with incomplete proceedings
before the Magistrates Court to allow the magistrate to independently
deal with the discretion imposed on him/her. The High Court should
only interfere where actual and permanent prejudice will be
occasioned to the applicants. The applicant must provide proof that
he/she will suffer prejudice should the High Court not interfere at
this stage.
Applicant
averred that the decision of the magistrate is irrational and
outrageous.
The
particulars for the fraud were that;
“In
that on various separate periods but during the period extending from
1 February 2006 to 2 February 2012 and at Kwekwe Consolidated Gold
Mines, Kwekwe, Lee Waverly John, unlawfully misrepresented to
Carslone Enterprises (Pvt) Lt that he was the new owner or director
of Kwekwe Consolidated Gold Mines (KCGM) through an omission to
disclose the permanent dereliction of the mine by previous owners and
directors whose whereabouts are currently unknown to the prosecutor,
that is to say, the accused, holding himself out as a director and
new owner of KCGM, tributed the mine to Carslone Private Limited,
thereby causing prejudice to the good reputation and good
administration of the Registrar of Companies office and the Ministry
of Mines and Mining Development.”
Applicant
argued that Carslone Enterprises denied that it was the complainant
in the matter.
The
evidence of Mirirai Chiremba, a representative of Carslone
Enterprises exonerated applicant. Chiremba testified that Carslone
Enterprises did not suffer any prejudice. The witnesses from the
Companies Office also testified that her office suffered no
prejudice. She testified that in terms of papers held by her office
applicant was a director of KCMG. No evidence was led from the
Ministry of Mines and Mining Development.
Evidence
by the investigating officer was hearsay evidence and should have
been rejected by the court.
In
his ruling the magistrate conceded that the evidence of Chakanyuka
from Companies office was of no assistance. He also found that
Mirirai Chiremba's evidence showed his company benefitted
financially and there was no prejudice on his company. The magistrate
found that there was evidence that the applicant improperly and
fraudulently acquired directorship and control of KCGM.
From
a reading of the magistrate's ruling there is no evidence that
applicant committed the offence he was charged with. A specific
charge was put to the applicant but the magistrate seems to be of the
view that the evidence led so far prima facie establishes guilty of
fraudulently acquiring directorship of KCGM. The charge put to the
applicant herein involves misrepresentation to Carslone Enterprise
that he was a director of KCGM causing prejudice to the good
reputation of Carslone Enterprise, Registrar of Companies Office and
the Ministry of Mines.
No
evidence was led to show prejudice of good reputation of the three
entities.
I
am satisfied that the evidence led did not prove a prima facie case
against defendant warranting him being put to his defence.
Whilst
it is correct that in terms of section 157 of the Criminal Procedure
and Evidence Act it is not necessary to identify the person who have
been defrauded, in this case such persons were mentioned. It became
essential to prove the elements of the offence vis-a-vis those
persons, which respondent failed to do.
No
misrepresentation were proven to have been made to Carslone
Enterprises.
I
am satisfied that to allow the applicant to be placed on his defence
would irreparably prejudice him. The magistrate's ruling is
tantamount to placing the onus on the applicant to prove his
innocence. The Constitution has already placed the onus on the State
to prove the guilt of an accused person. See Ndlovu v Regional
Magistrate Eastern Division and Anor 1989 (1) ZLR 264 (H) and Makamba
v Sithole N.O. and Anor HH83-04.
The
decision by the trial magistrate is not supported by evidence led and
hence it is unreasonable. In fact the decision is completely wrong
consideration being had to the evidence submitted before the
magistrate. I am of the view that the decision defies all logic and
is completely wrong.
In
the result the application succeeds and it is ordered as follows;
(1)
The decision of the second respondent of dismissing the applicant's
application for discharge at the close of State case under case
number R874/12 be and is hereby set aside.
(2)
Applicant is discharged and acquitted at close of State case.
(3)
There be no order as to costs.
Messrs
Mahuni & Mutatu, applicant's legal practitioners
Attorney
General's Office, respondents' legal practitioners
