The facts of the case are as follows.
The appellant and the second respondent were arrested on 26
November 2011 on allegations of fraud and theft relating to CAPS Holdings. The
appellant was charged on his own with three (3) counts of fraud as defined in section
136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and two
counts of theft as defined in section 113 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23]. He was
jointly charged with one Justice Mujaka on one count of fraud.
On 29 November, the appellant and his co-accused were
placed on remand. The Form 242, on the basis of which the Magistrate's Court
was satisfied that there was reasonable suspicion of the appellant having
committed the offences charged against him contained allegations which were
later challenged by the appellant. In respect to the fraud charge he was facing
alone, it was alleged that the appellant withdrew money from the company's bank
accounts at Stanbic Bank and Commercial Bank of Zimbabwe Ltd, respectively,
upon a misrepresentation that the money was required for the purchase of drugs,
when, in fact, the money was for his own use, to the prejudice of CAPS
Holdings. In respect to the charge of theft he was facing, it was alleged that
the appellant had intentionally withdrawn a total of ZAR169,000= from two CAPS
Holdings bank accounts held in South Africa knowing that CAPS Holdings was
entitled to own, possess or control its funds and he converted the funds to his
own use.
The allegation against the appellant and his co-accused was
that they misrepresented to the Medicines Control Authority of Zimbabwe (MCAZ)
that they had authority to de-register 50 drugs. They did not have such
authority. In fact, once the drugs were de-registered they intended to
re-register the same drugs in Europe at Liechtenstein.
The appellant and his co-accused were granted bail on
condition they did not interfere with witnesses, that they would surrender
passports, and would not go back to CAPS Holdings. Later, the conditions were
altered to have the appellant given back his passport. The appellant later went
to his place of work. The State considered that as a breach of his bail
conditions and that led to an application being made on 13 January 2012 for the
reversal of the relaxed bail conditions.
A hearing commenced before the magistrate, Jarabini Esquire,
to determine whether the appellant had breached his bail conditions. The Investigating
Officer was called to testify, but proceedings were stopped before he was cross
examined. The appellant was, at the time, represented by Mr Samkange of
Venturas and Samkange Legal Practitioners.
At the hearing, Mr Samkange had also made an application for refusal of
further remand. The decision of that application was reserved.
The allegations of the bail breach were to be continued on
25 January 2012. The matter was remanded for continuation on 17 February 2012.
Meanwhile, the appellant withdrew his instructions from Mr Samkange and
mandated Linda Chipato of Linda Chipato Legal Practitioners. On 15 February
2012, Ms Chipato wrote a letter to the Attorney General in which she alleged
that allegations made against the appellants on Form 242 were contrary to the
evidence on hand. She alleged that the appellant was therefore wrongly placed
on remand on, what she called, false information.
While aware of the fact that an application had already
been made by Mr Samkange for
refusal of further remand and that a decision was pending on the matter, she
suggested to the prosecutor that the appellant be removed from remand. She was
also aware of the fact that evidence on the statement of bail had not been
completed as the Investigating Officer was still to be cross-examined. In the
last paragraph of the letter, Ms Chipato then wrote:
“It has also since been brought to our client's attention
that a ruling may already have been prepared in anticipation of the next
hearing date, wherein the application for refusal of further remand shall be
dismissed and our client found guilty of breaching bail conditions with him
being sentenced to one year in custody with six months being suspended on the
usual conditions. We are not certain whether Esquire Mutevedzi is aware of
this. Whilst we find this to be shocking, we would be grateful if you look into
it. Should this be the case, we shall not hesitate to immediately make the
necessary application to the Supreme Court for violation of our client's
rights, miscarriage of justice, abuse of office, coupled with a claim for
damages against all parties concerned. Kindly revert to us on the urgent aspect
of this case.”
At the commencement of the proceedings on 17 February 2012,
the prosecutor brought to the attention of the magistrate the allegations made
in the letter. It was the prosecutor's opinion that the letter amounted to
contempt of court and criminal defamation. He went on to say the letter was
abusive, mischievous and malicious. The prosecutor alleged that Ms Chipato
should have checked the record of proceedings at the Clerk of Court's office to
satisfy herself whether any judgement had been written in advance. On her part,
Ms Chipato indicated to the court that there was no intention to insult
the court or to be in contempt of the proceedings.
She indicated it was unfortunate that the prosecutor had
brought it to the attention of the court in public proceedings when the
intention was to allay her client's fears on the basis of information he had
received. She indicated it had not been the intention to bring it to the
attention of the courts until the facts had been proven. She further
highlighted that her client had met with Esquire Mutevedzi who indicated that
his ruling had been prepared. In addition, that her client had photographic
evidence of the meeting he held with Esquire Mutevedzi and another gentleman on
the 21 December 2011 at a service station along Chiremba Road in the
Chadcombe area in Hatfield.
It was agreed, by consent, on that day, for the matter to
be postponed to 20 February 2012 because the Investigating Officer, who was to
continue leading evidence on allegations of breach of bail conditions, was
ill. Ms Chipato also indicated that the
next remand, on 6 March 2012, her client intended to apply for refusal of
remand.
When proceedings resumed on 20 February, the magistrate
delivered a judgement in which he had made a decision to recuse himself from
the proceedings. The magistrate indicated that it was in the interests of
justice for him to recuse himself because the allegations made in the letter to
the Attorney-General, by the appellant, through his legal practitioners, were
serious. It was the magistrate's view that in the circumstances, whatever
decision he made would not be accepted by either party as being impartial. In
his ruling he stated:
“The general approach to a recusal is also expounded in the
case of President of RSA v SA Rugby Union 1999 (4) SA 147 (ii) at page 177 B-E.
At the root of this rule (recusal) lies the very concept of judicial
independence. In casu, either way the
decision goes, eyebrows will be raised on the ruling by either party or the
public given the nature and magnitude of accusations traded between the State
and the defence counsel for the 1st accused which has spilled to the
bench…,. Given the circumstances, a decision which represents the true
interests of justice can only be achieved by another independent and impartial
(so to speak) judicial officer.”
On 1 March 2012, the magistrate forwarded record of
proceedings to the High Court with the request that it be placed before a judge
for quashing of proceedings so that fresh proceedings could commence before
another magistrate.
When the referral came to the notice of the appellant's
legal practitioner, she filed an application in the High Court for review of
the same proceedings on the ground that there was no real and substantial
justice. In the application, she went on to allege that the appellant had been
placed on remand on false information contained in Form 242. She placed
documents to show that the allegations were not supported by evidence.
She also went further to ask the reviewing judge to
determine the legality of the order of remand. She then sent a letter to the
Registrar of the High Court, for the attention of the reviewing judge, in which
she alleged that referral by the magistrate for quashing of proceedings was
unlawful. She said the appellant had not been heard before the decision to
recuse himself by the magistrate was made.
The court a quo dismissed the application on 23 May 2012.
As already indicated, there was no misdirection on the part
of the learned judge on the question of the validity of the grounds on which
the application was based. It is clear that the learned judge would not have
had the power to consider whether there were grounds for a reasonable suspicion
of the accused having committed the offences charged against him. That was a
matter which had been decided upon by the magistrate who first remanded the
appellant on 29 November 2011. If there were any changed circumstances
requiring a review of that decision the Magistrate's Court was the correct
forum to entertain an application for refusal of remand.
In the course of the judgment, the learned judge made
reference to issues relating to the letter. He said that the appellant's legal
practitioner had adopted a hostile combative mood. He stated:
“A perusal of the record shows proceedings were conducted
in a rather acrimonious, hostile and aggressive atmosphere not conducive to the
due administration of justice. Counsel for the accused, Ms Chipato, did not help
matters by resorting to abrasive, coarse, intemperate language unbecoming of a
legal practitioner both in her viva voce submissions in court and written
communications to the Attorney General's office.”
He stated, further:
“It thus emerges quite clearly that after succeeding in
hounding the presiding magistrate from the proceedings by levelling apparently
unsubstantiated, defamatory, and contemptuous allegations against the trial
magistrate, they now seek to use the High Court to avoid trial and gain immunity
from prosecution by devious means. This type of conduct is unethical and an
extreme abuse of the review process requiring some sort of censure from the Law
Society and the prosecuting authorities should the allegations against the
presiding magistrate turn out to be baseless and unfounded. Sight should not be
lost that apart from their mere say so, wild speculation, and conjecture, the
applicant and his lawyer have proffered no shred of evidence tending to show
that the presiding magistrate is indeed guilty of serious allegations they have
levelled against him. They have not bothered to disclose the source of their
information or suspicion. They have therefore not laid any basis for the
serious allegations they have levelled against the trial magistrate.”
The learned judge then went on…, to say:
“Litigants and legal practitioners must be warned strongly
against making idle, unsubstantiated, malicious, slanderous and scurrilous
allegations against judicial officers and court officials. That type of conduct
can only bring the due administration of justice into disrepute. The need to
protect the dignity and integrity of the courts and judicial officials cannot
be over emphasised. This is for the simple reason that the courts and judicial
officers derive their right to preside over affairs of the subjects of the
State from the Constitution, and, to that extent, the people of Zimbabwe.”
The judge concluded by saying:
“I hasten to point out that nothing must be swept under the
carpet in this case. There must be a proper investigation of the allegations
levelled against the presiding magistrate. If he is guilty, as alleged, then
the law should take its course and the same should apply to the legal
practitioner and her client should allegations be found to be baseless.”
It is clear that it was on the basis of the interpretation
of the letter that the learned judge made his findings above. In addition, the
judge's perception of the conduct of the appellant's legal practitioner, was,
to him, sufficient enough evidence upon which he gave the direction in paragraph
2 of the order that:
“2. That the Registrar be and is hereby directed to serve a
copy of this judgment on the Attorney-General, the Judicial Services Commission
and Secretary of the Law Society.”
The question is therefore whether or not the interpretation
of the letter, and the proceedings in the court a quo, justify the conclusion
by the learned judge.
There is no doubt that the letter was originally not
intended for public consumption, and also that it was not intended, rightly or
wrongly, for the magistrate to know. The letter expresses fear by the legal
practitioner, on behalf of her client, of something he said he had been told by
people he met. The letter also showed that investigations of the truthfulness
of the allegation made by the appellant had to be made.
Furthermore, a close examination shows it is not as if the
legal practitioner has accepted the allegations for truth. Having come across
information like that it is difficult to say that the legal practitioner ought
not to have brought this information to the attention of the Attorney General.
The Attorney General represents public interests and is entrusted with the
responsibility of having matters of breach of law investigated. While the learned
judge points out that the allegations needed to be investigated, in the
administration of justice, he also seems to chide the legal practitioner for
having done so.
The basis for criticism by the learned judge, of the legal
practitioner, is based on the belief that the letter is contemptuous and
defamatory of the magistrate.
An examination of the course of events during proceedings
shows, clearly, that the magistrate appreciated the seriousness of the
allegations and did not take them against the legal practitioner. The
magistrate gave the legal practitioner the opportunity to put forward her
version of what happened to him. Although having been taken by surprise by the
revelation of the contents of the letter to the magistrate by the prosecutor,
and the allegation that she was guilty of contempt of court, Ms Chipato
remained calm. She appreciated the gravity of the matter and took time to
explain how she had come to write the letter.
According to IBA International Principles on
Conduct for the Legal Profession commentary, adopted on 28
May 2011 by the International Bar Association,…,:
“Lawyers
should represent their clients, competently, diligently, promptly and without
any conflict to their duty to court.”
There is nothing in the record to support the accusation of
Ms Chipato being combative and hostile. She had a duty to her client and the
only forum to address her client's concerns was to approach the Attorney
General's office as she rightfully did.
It is trite
that a lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer and take whatever lawful
and ethical measures may be required to vindicate a client's cause.
In the case of
Pertsilis v Calcaterra & Anor 1999 (1) ZLR 70 (H)…, SMITH
J stated:
“Legal practitioners owe their clients a duty of
loyalty. They are duty bound to advance and defend their client's
interests. A legal practitioner is expected to devote his or her energy,
intelligence, skill and personal commitment to the single goal of furthering
the client's interests as those are ultimately defined by the client.”
In light of the above statement, the appellant's legal
practitioner ought not to be faulted for the course of action she took. If due
consideration is given to her conduct before the court, when the first
respondent's representative drew the court's attention to the letter in
question, there is nothing to indicate she compromised her duty to the court as
a court official.
The Court is satisfied that the learned judge misdirected
himself in the view he took of the effect of the letter and conduct of the
legal practitioner during proceedings in the Magistrate's Court. It was for
this reason that paragraph 2 of the court a quo's order was set aside.
Accordingly, it is ordered as follows:
1. The appeal is allowed only to the extent that para 2 of
the court a quo's order is hereby set aside.
2. There shall be no order as to costs.
