Before
CHIDYAUSIKU CJ: In
Chambers
The
legal practitioners representing Mr Charles Kwaramba (hereinafter
referred to as "the applicant") placed before the Registrar
of this Court the following letter:
"REQUEST
FOR DIRECTIONS
We
act on behalf of Mr Charles Kwaramba at whose instance we write. Mr
Kwaramba, who is a legal practitioner and an officer of this Court,
was representing accused persons in the case of Tungamirai Madzokere
and 28 Others Case No. CRB55/12. He applied for bail on their behalf
and in the judgment dismissing the bail application the court also
made adverse findings against Mr Kwaramba.
A
copy of the judgment is attached.
Some
time ago we received instructions from Mr Kwaramba to seek a review
of the decision as he felt that there were irregularities in the
manner the court arrived at the decision affecting him.
As
we were preparing the application, we noticed that there is a
challenge with regard to review proceedings before the Supreme Court.
Section 25(3) of the Supreme Court Act seems to suggest that there is
no right to approach the Supreme Court for review as a court of first
instance.
However,
sections 17(h) and 25(1) of the same Act both seem to confer review
powers on the Supreme Court.
In
light of the above, we became very averse to filing an application
without first seeking the Court's directions on the matter.
We
note, however, that, in terms of section 25(3) of the Act, the
Supreme Court or a Judge of the Supreme Court can give directions
whether a review in the nature of this one can be instituted before
it in the first instance.
We
attach a draft copy of the application which is intended to be filed.
We
therefore request you to kindly place our request before a Judge for
directions. We look forward to your urgent attention to the matter."
It
would appear to me that two requests emerge from the above
correspondence –
(1)
The legal practitioners for the applicant are seeking the opinion of
a Judge of the Supreme Court as to whether in terms of s17(h) or
s25(1) of the Supreme Court Act [Chapter 7:13] (hereinafter referred
to as "the Act") the applicant can launch a Court
application for review of the judgment of the Honourable Mr Justice
BHUNU (hereinafter referred to as either "the respondent"
or "the learned Judge") in a bail application made by the
applicant on behalf of his clients in the High Court.
Put
differently, the legal practitioners are enquiring whether their
client has a cause of action in terms of s17(h) or s25(1) of the Act;
and
(2)
The legal practitioners for the applicant request that a Judge of
this Court give directions in terms of s17(h) or s25(3) of the Act
that a review of this matter be instituted.
Section
17(h) of the Act provides:
"17
Supplementary powers of Supreme Court
For
the purposes of this Part, the Supreme Court may, if it thinks
necessary or expedient in the interests of justice – …
(h)
exercise any of the powers of review conferred upon the High Court by
section 29 of the High Court Act [Chapter 7:06]: …".
While
s25 of the Act provides:
"25
Review powers
(1)
Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction and authority
as are vested in the High Court and judges of the High Court,
respectively, to review the proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(2)
The power, jurisdiction and authority conferred by subsection (1) may
be exercised whenever it comes to the notice of the Supreme Court or
a judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.
(3)
Nothing in this section shall be construed as conferring upon any
person any right to institute any review in the first instance before
the Supreme Court or a judge of the Supreme Court, and provision may
be made in rules of court, and a judge of the Supreme Court may give
directions, specifying that any class of review or particular review
shall be instituted before or shall be referred or remitted to the
High Court for determination."
I
will not entertain the first request because it is essentially a
request for legal advice.
This
Court does not proffer legal advice to litigants. The applicant will
have to make his own decision whether or not it is competent to make
such an application in the light of the relevant provisions of the
law and the previous decisions of this Court.
As
regards the second request, applications for directions are made by
way of Chamber application.
It
is inappropriate to do so by way of a letter addressed to the
Registrar of this Court for placement before a Judge of this Court.
I
will, however, overlook that inadvertence and deal with this request
for directions as if it has been made by way of a Chamber
application, hence this judgment.
I
have considered the request for directions and concluded that on the
facts of this case it is not competent for a Judge of this Court to
issue directions for the review of a High Court judgment in terms of
s25 of the Act. See Chairman, Zimbabwe Electoral Commission and Anor
v Bennett and Anor 2005 (2) ZLR 296 (S) and Nherera v Kudya N.O. 2007
ZLR 253 (S).
The
background facts to this request are as set out by the applicant in
his proposed Court Application for Review. The proposed Court
Application for Review is attached to the letter to the Registrar.
The
following are the facts.
The
applicant is a legal practitioner practising law in Harare in
partnership with others under the name and style of Zimbabwe Lawyers
for Human Rights. He was one of the legal practitioners representing
accused persons who are accused of murdering a police officer in June
2011. He is one of a team of about four legal practitioners
representing about twenty-nine accused persons.
The
trial of the accused persons commenced on 4 June 2012 in the High
Court.
The
applicant, on behalf of the accused persons, made a bail application,
which the State opposed. The court, presided over by MR JUSTICE
BHUNU, reserved its judgment.
The
trial continued while awaiting judgment on the bail application.
The
incident that gave rise to this application for directions then
occurred. It would appear that, while awaiting judgment on the bail
application, there was an article in the Daily News newspaper stating
the following:
"Human
rights lawyer Charles Kwaramba, who is representing the 29 MDC
activists, said the law is not being applied fairly. It just goes on
to show that there is no equal application of the law. This is a
classical example. Here we have police officers who are supposed to
protect the people being accused of murdering a civilian for a
dollar. On the other hand, we have 29 civilians who have been in
prison for over a year now, being accused of killing a cop. So far
there is no evidence that points at them, but the speed of arrests
shows that the police wanted to arrest them because they are MDC.
There were no investigations when the 29 were arrested. One wonders
how the Shamva cops (got) $50 bail each in a murder case while the 29
activists are failing to get the same even when there is no evidence.
Kwaramba said the moment that a person is labelled MDC justice is
politicised."
The
newspaper article, by use of quotation marks, purports to quote the
applicant as the origin of the above remarks.
The
applicant admits that he was asked to comment on the manner in which
the wheels of justice were turning in the matter. He also admits that
he expressed disappointment at the lengthy stay of his clients in
remand prison. He contends that any other lawyer would have felt the
same.
The
applicant's stance on the Daily News article is contained in pars 4.6
to 4.12 of the founding affidavit of his proposed Court application.
He states the following:
"4.6
I then made the bail application which the State opposed. The court
reserved its judgment. The trial went on while awaiting judgment on
the bail (application). The incident which gave rise to these
allegations then occurred.
4.7
It is true that there was an article in the Daily Newspaper stating
what the Honourable Judge repeated at page 3 of his (cyclostyled)
judgment.
4.8
It is also true that the article quoted lawyers including Dewa
Mavhinga and myself.
4.9
It is true that I was asked to comment (on) the manner that the
wheels of justice were turning in the matter. It is true that I
expressed disappointment at the lengthy stay of my clients in remand
prison. I do not think any lawyer could have felt otherwise.
4.10
It is true that I was invited to make a comparison of our case with
the Shamva case. I declined the invitation indicating that I did not
know much about that case but commented that if the cases were
similar then like-accused must be treated alike as this is the
position of the law. In fact, I got much of the details of the Shamva
case from the interviewing journalist. I did not know about it. I did
not even know much about the circumstances of the murder.
4.11
So, while the article contained some correct information, it also
contained inaccuracies. Statements such as 'THE LAW IS NOT BEING
APPLIED FAIRLY', (and) 'THERE IS NO EQUAL APPLICATION OF THE LAW'
were wrongly attributed to me. I deny using these words.
4.12
Although the article was to some extent true, it contained several
inaccuracies, which inaccuracies probably created the wrong
impression in (the) minds of readers including the Honourable Judge."
The
learned Judge, disturbed by the above article, summoned all the legal
practitioners in the matter to his Chambers on the Monday following
publication of the article.
In
his Chambers he expressed his concern over the contents of the
article and asked the legal practitioners to comment on the issue.
The
applicant indicated to the learned Judge that the article was
inaccurate and that there was no intention whatsoever on his part to
attack the court or make adverse comments. He tendered his apology to
the respondent if the wrong impression had been created. He advised
the respondent that newspapers were notorious for writing stories
with a twist that sold papers. In short, the applicant alleged that
the newspaper had misquoted him or misrepresented him.
He
assumed that the matter had been resolved.
However,
on 19 June 2012 the court delivered its judgment in the bail
application. In the course of that judgment the learned Judge
castigated the applicant for his communication with the newspapers.
The learned Judge has this to say at pp 2-4 of the cyclostyled
judgment:
"There
has been, however, an unfortunate development in this trial in that
one of the defence team of lawyers, Mr Kwaramba, instead of adducing
the required evidence according to law, has now decided to play to
the gallery and the press in a bid to secure the release of his
clients without complying with the law by demonising and attacking
the dignity and integrity of this Court and the Judiciary of this
country in general.
He
is quoted in an article in the Daily News on Sunday of June 10 (2012)
at p4 as follows:
'Human
rights lawyer Charles Kwaramba, who is representing the 29 MDC
activists, said the law is not being applied fairly. It just goes on
to show that there is no equal application of the law. This is a
classical example. Here we have police officers who are supposed to
protect the people being accused of murdering a civilian for a
dollar. On the other hand, we have 29 civilians who have been in
prison for over a year now, being accused of killing a cop. So far
there is no evidence that points at them, but the speed of arrests
shows that the police wanted to arrest them because they are MDC.
There were no investigations when the 29 were arrested. One wonders
how the Shamva cops (got) $50 bail each in a murder case while the 29
activists are failing to get the same even when there is no evidence.
Kwaramba said the moment that a person is labelled MDC justice is
politicised.'
With
respect Mr Kwaramba's remarks cannot reasonably be true.
They
are being made at a time when the very same police he is attacking
have arrested ZANU PF activists in Mudzi for allegedly murdering an
MDC member in politically motivated violence. They have since been
denied bail by this very Court. See David Chimukoko and Others v The
State HH254-12.
It
is a well documented truth and our Court records and law reports are
replete with MDC members charged with treason or murder, including
its leader, who owe their lives to this very Court that Mr Kwaramba
has the audacity to publicly demonise and denounce as an enemy of the
MDC.
This
is not to mention countless others charged with various offences
including fraud and insulting the President who also owe their
freedom to the very Judiciary that Mr Kwaramba seeks to demonise and
portray as being partisan and biased against the MDC. See:
1.
State v Sonny Nicholas Masera HH50-04;
2.
S v Tsvangirai & Ors 2003 (2) ZLR 88;
3.
S v Tsvangirai 2004 (2) ZLR 210;
4.
The State v Roy Leslie Bennett HH79-10;
5.
The Attorney-General v Roy Leslie Bennett SC7/11;
6.
The State v Elton Mangoma HH136-11.
Just
to mention but a few.
This
Court's mission is to dispense world class justice to all manner of
people without fear or favour.
Right
now as I speak the MDC President is busy defending in the Supreme
Court this Court's landmark judgment issued in his favour against his
arch rival the President of ZANU PF and Zimbabwe.
That
puts to shame Mr Kwaramba's ill conceived malicious remarks in the
press bent on bringing the due administration of justice into
disrepute.
Mr
Kwaramba deliberately misrepresented the facts and the law to mislead
gullible members of the public and the press when he launched that
caustic inflammatory but baseless attack on the Bench and the
Judiciary in general.
The
simple answer to his insincere rhetoric question is that Parliament
has decreed that where a person is alleged to have killed a law
enforcement officer, and in this case a policeman, the Court is
prohibited from granting the accused bail until such time he or she
has adduced evidence to the Court's satisfaction establishing the
existence of special circumstances justifying his (or her) release.
The
same considerations do not apply to a person or police officer who is
alleged to have killed any person other than in circumstances falling
under section 117(6) of the Act."
The
learned Judge further stated in his judgment at pp 4-5:
"In
his demonisation of the Judiciary, Mr Kwaramba was well aware that
the Shamva case was different from this case.
This
explains why in all his lengthy addresses and submissions in open
court he never mentioned the Shamva case or sought to draw any
similarities between the two or any other case because he knew that
they were different and that different legal considerations applied.
In
judgment Number HH182/12 I took the trouble to draw his attention to
s117(6) and to explain its legal implications to his apparent
satisfaction such that he abandoned his ill conceived bid to appeal
against my order inviting him to comply with the legal requirements
prescribed by law.
Having
failed to take refuge in the Supreme Court he now seeks solace in the
media and gullible members of the public together with some obscure
self styled, shallow minded if not bogus lawyers whom I have never
encountered at the courts in my 31 years in the Judiciary.
For
him to then turn around, attack and denigrate this Court on the basis
of a case reference and arguments he never advanced in open court so
that they could be subjected to legal scrutiny smacks of dishonest,
slanderous, contemptuous and unethical conduct on his part."
The
learned Judge, after an analysis of the facts and applying the law to
the facts, dismissed the bail application.
The
applicant objects to the learned Judge's remarks on four grounds, set
out in the proposed Court application for review, namely -
"1.
There are/were gross irregularities in the proceedings or decision.
1.1
The applicant was not given an opportunity to be heard.
1.2.
The findings against the applicant were made in a case in which he
was not a party.
1.3
The applicant's rights to the protection of the law and to legal
representation were violated. 1.4 The respondent's findings were not
borne out by the facts before him."
It
is on the basis of these facts that I am now requested to give
directions in terms of s25(3) of the Act that a review be instituted
or the matter be referred or remitted to the High Court for
determination.
Before
a Judge of the Supreme Court issues directions in terms of s25(3) of
the Act, he or she has to be satisfied of the existence of an
irregularity that needs determination or correction which has
occurred.
Generally
speaking, an irregularity occurs when a judicial officer takes into
account factors that he should not take into account or fails to take
into account factors he should take into account in the process of
the making of a determination the judicial officer is seized with.
An
irregularity also occurs where the law is misapplied or an incorrect
procedure is followed.
The
court a quo was seized with a bail application. The learned Judge had
to determine whether or not bail should be granted.
There
is no allegation that in making the determination to grant or refuse
bail the learned Judge took into account wrong factors or failed to
take into account factors which he should have taken into account.
No
misdirection in the determination of the bail application is alleged.
Put differently, no irregularity is alleged in the determination of
the bail application.
The
remarks complained of by the applicant were obiter and were not part
of the ratio decidendi of the determination of the bail application.
Sections
17(h) and 25 of the Act confer concurrent review jurisdiction on the
Supreme Court with the High Court over inferior tribunals.
What
this means is that a Supreme Court Judge, in the exercise of
jurisdiction conferred by ss 17 and 25 of the Act, has the same
review jurisdiction as a High Court Judge.
A
Judge cannot order the review of a judgment of another Judge of the
same jurisdiction.
Thus,
from a jurisdictional standpoint, the request is not competent. See
Chairman, Zimbabwe Electoral Commission and Anor v Bennett and Anor
supra and Nherera v Kudya N.O. supra.
Essentially
the applicant's complaint is that the learned Judge should not have
severely reprimanded him for his conduct or misconduct.
The
applicant does not seem to appreciate what is expected of him as a
legal practitioner and an officer of the court.
On
the applicant's own account, the Daily News ascribed to him the
remarks it published in its newspaper. The remarks ascribed to him do
not only scandalise the learned Judge but were also made while the
matter was sub judice.
There
is a time honoured practice which has crystallised into law that
prohibits the making of inappropriate statements on matters pending
before the courts.
I
have no doubt in my mind that the statements ascribed to the
applicant grossly transgressed the sub judice rule and clearly
constitute contempt of court, in that they scandalise the court by
ascribing to it political motivation in its judgment.
The
inescapable inference is that the remarks were made not only to bring
the court into contempt in the eyes of the public but also in an
attempt to influence the outcome of the bail application and
consequently the course of justice.
The
applicant should consider himself lucky that he was not prosecuted
for contempt of court.
Legal
practitioners who show such blatant disrespect and contempt for the
courts have no business appearing before the courts.
In
my view, serious consideration should be given to the introduction of
more stringent measures to protect the dignity of the courts from
being impaired by reckless utterances.
Upon
the publication of the article in the Daily News I would have
expected the applicant to immediately issue a statement
disassociating himself from the contents of the article and denying
that he ever uttered the words ascribed to him by the Daily News
newspaper.
That
is what one would expect of a person falsely accused of saying things
he never said.
I
also would have expected the applicant to have urgently sought
audience with the learned Judge to assure him that he never said the
words ascribed to him.
Instead,
he only offered a wishy washy explanation upon being asked about the
matter by the learned Judge. He made no effort to correct the
impression conveyed to the public that the court is partial and that
the applicant was the source of the allegation.
The
applicant is the author of his own misfortune. He should be more
circumspect in the way he conducts himself.
I
accordingly decline to give the directions requested.
Dube,
Manikai & Hwacha, applicant's legal practitioners
