Appeal and Leave to Appeal re: Approach iro Limitation to the Right of Appeal

SSC23-14 : THE ATTORNEY GENERAL vs ALEC MUCHADEHAMA and CONSTANCE GAMBARA
Ruled By: MALABA DCJ

This matter was placed before me in chambers as an application for condonation and extension of time within which to appeal from a decision of a judge of the High Court. The decision refused leave to appeal to that court from a decision of a magistrate discharging the respondents of a criminal charge at ...

The question arose as to whether there was any provision granting the Attorney General the right to appeal.

The decision on the question raised is that there is no statutory provision giving a right of appeal from a decision of an intermediate Court of Appeal like the High Court refusing leave to appeal to it from a decision of a subordinate tribunal.

The decision on the question is by a single judge sitting in chambers. It became necessary to enter into the question for the purposes of determining whether or not the proceeding in chambers was a proper application for condonation and extension of time within which to appeal as claimed by the Attorney General. The question whether there is a right to appeal should ordinarily be decided by the Supreme Court constituted by a minimum of three judges.

On 14 December 2009, a magistrate, acting in terms of ections 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], found the respondents not guilty of the crime of contempt of court in contravention of section 182(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] with which they had been charged. The magistrate had found, at the close of the case for the prosecution, that there was no evidence on which a reasonable court acting carefully, might properly convict the respondents of the offence charged or any other offence of which they might be convicted on the same charge.

The allegations against the respondents were that they acted in common purpose, and unlawfully caused three accused persons to be released on bail with knowledge of an order of a judge of the High Court prohibiting the release of the accused. It was alleged that each or both of them intentionally impaired the dignity, reputation or authority of the court.

The first respondent is the legal practitioner who represented the three accused persons in an application for bail before a judge of the High Court. Bail was granted on 9 April 2009. The representative of the Attorney General invoked the provisions of section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] by notifying the judge, immediately after the decision admitting the accused persons to bail, that he wished to appeal to a judge of the Supreme Court against the decision.

Section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that once the notification of the wish to appeal is given to the judge, immediately after the decision admitting an accused to bail, the decision is suspended for a period of seven days. The Attorney General, or his representative, is required to obtain leave to appeal from a judge of the High Court, or, if a judge of that court refuses to grant leave, from a judge of the Supreme Court, within the period of seven days. If leave to appeal is granted and the notice of appeal filed within the seven days, the person admitted to bail remains in custody until the appeal is determined. It is important to appreciate the fact that, under section 121(a) of the Criminal Procedure and Evidence Act [Chapter 9:07], the Attorney General, or his representative, is not obliged to exercise the right to appeal within seven days of the decision admitting an accused person to bail being suspended. He or she should do so if he or she wants to benefit from the effect of the suspension in terms of section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The Attorney General applied to a judge of the High Court for leave to appeal on 14 April 2009. The application was on a certificate of urgency because he appreciated that the appeal to a judge of the Supreme Court had to be lodged within seven days of the decision admitting the accused persons to bail. No explanation was given for the decision not to apply for leave to appeal soon after invocation of the provisions of section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] on 9 April 2009. The judge, who was not the judge who admitted the accused persons to bail, granted leave to appeal on 17 April 2009. The first respondent went to the Supreme Court that day and verified that no notice of appeal had been filed. Acting on the basis, that leave to appeal had been granted after the expiry of seven days and that no notice of appeal had been filed at the Supreme Court, the first respondent approached the office of the Registrar of the High Court asking that orders admitting the accused persons to bail be prepared.

The second respondent was the clerk to the judge who granted leave to appeal. She got the orders, which had already been signed, and handed them to the first respondent. On the authority of the orders, bail was paid at the Magistrates Court on behalf of the accused persons. They were released from custody on 17 April 2009.

At the trial of the respondents, the State witnesses accepted the respondents' contention that the seven days expired on 16 April 2009. The prosecution had alleged, in the charge, that the order granting leave to appeal specifically directed that the order by which the accused persons were admitted to bail was to be suspended until the appeal was determined. The copy of the judgment showed that the learned judge simply confined himself to granting leave to appeal. The learned judge must have been aware of the fact that his powers were limited to granting leave to appeal only. The question whether or not the accused persons remained in custody pending determination of the appeal was pre-determined by the legislature in terms of section 121(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The learned judge must have understood that he could not alter that legal position by leave to appeal granted at any time after the expiry of the seven days prescribed under section 121(1)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].

A judge who grants leave to appeal timeously does not have to order that the accused person should remain in custody until the appeal is determined. He or she does not have to order that the decision admitting an accused person to bail is suspended by the granting of leave to appeal. The law itself makes provision for the imposition of that disability on the accused person under section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The learned magistrate was alive to the fact that contempt of court is a specific intent offence. She was aware of the fact that section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] required leave to appeal to be granted within seven days after the date an accused is admitted to bail. She took into account the concession by the State witness, who is a prosecutor, that the period of seven days expired on 16 April 2009 without leave to appeal having been granted. She also took into account the fact that a wrong interpretation of the law could not justify a finding of intention to impair the dignity, reputation or authority of the court.

The learned magistrate found, on the facts, that in waiting until the expiry of the period of seven days and acting to have the accused persons released from custody on bail on 17 April 2009, the respondents could not be found by a reasonable court, acting carefully on the evidence, to have had the intention to impair the dignity, reputation or authority of the judge who granted leave to appeal on 17 April. There was, according to her, no evidence to prove intention as an essential element of the offence. She made the pertinent observation of the fact that what was in issue, was whether or not, the time limits prescribed by the relevant statute had been complied with, for the State to have benefitted from the effect of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The learned magistrate even made the finding that the notice of appeal to a judge of the Supreme Court had not been filed.

Applying to the facts the principles of law enunciated in the cases of Attorney General v Bvuma & Anor 1987 (2) ZLR 96 (S); Attorney General v Mzizi 1991 (2) ZLR 321 (S); Attorney General v Tarwirei 1997 (2) ZLR 75 (S); and State v Tsvangirai and Others 2003 (2) ZLR 88 (H), the learned magistrate concluded, at the close of the case for the prosecution, that there was no evidence that the respondents committed the offence charged, or any offence of which they might be convicted thereon, and returned a verdict of not guilty.

Section 198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] gives the Attorney General, a conditional right to appeal to the High Court if he is dissatisfied with a decision of a magistrate finding an accused not guilty of an offence charged at the close of the case for the prosecution. He or she must first obtain leave to appeal from a judge of that court. Leave may be granted or refused. The effect of the restriction is that a right of appeal is not available unless leave to appeal is granted.

The application for leave to appeal was made to a judge of the High Court eight months after the decision of the Magistrates Court. On 28 October 2010, a judge of the High Court refused leave to appeal on the ground that there were no prospects of success on appeal.

The Attorney General was not immediately perturbed by the decision.

Eleven months after the decision by the learned judge denying leave to appeal, the laggard representative of the Attorney General made what is called an application for condonation and extension of time within which to appeal against the decision of the judge of the High Court.

Counsel for the applicant suggested that the jurisdiction for entertaining the application was to be found under Rule 19(1) of the Rules of the Supreme Court 1964.

Counsel for the respondents argued that the Rule applied to cases in which the High Court would have exercised jurisdiction and a right to appeal to the Supreme Court lay with leave of a judge of that court, or, if refused, with leave of a judge of the Supreme Court.

Rule 19(1) of the Rules of the Supreme Court 1964 provides that:

“(1) A person who has been refused leave to appeal by a judge of the High Court may, within ten days of the date when leave to appeal was refused, or within fifteen days of conviction, whichever is the later date, apply to a judge for leave to appeal.”

Rule 19(1) of the Supreme Court 1964 falls under Part IV of the Rules which provides, under Rule 16, that provisions of that Part shall apply to “criminal appeals from the High Court.”

Rule 16 limits the application of Rule 19(1) of the Supreme Court 1964 to the application for leave to appeal in respect of appeals from decisions of the High Court in criminal matters, where that court would have been exercising its own jurisdiction. Rule 19(1) is clearly concerned with refusal of leave to appeal against a conviction by the High Court. The right to appeal in respect to which leave must be applied for is given to the person convicted of a criminal offence by the High Court. Refusal of leave to appeal to the High Court cannot be said to be a decision in a criminal matter before the High Court. The refusal of leave has the effect of preventing the proceeding coming into existence in the High Court.

Rule 19(1) of the Rules of the Supreme Court cannot provide justification for the purported application for condonation and extension of time within which to appeal against refusal by a judge of the High Court to grant leave to the Attorney General to appeal to that court against a decision of a Magistrates Court in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

It is necessary to consider the meaning of the terms of the provisions of section 198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and take into account the purpose of the section.

The consideration leaves no doubt in the mind that giving a right to appeal from a decision of a judge of the High Court refusing leave to appeal to that court from a decision of a Magistrates Court made in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], would defeat the whole object of giving a judge of the High Court the power to decide on the merits whether to grant or refuse leave to appeal to that court.

When a right to appeal is given, subject to the condition that leave to appeal be granted, it is clear that the intention of the legislature is that some tribunal must have the power to decide, whether the right to appeal should be given or not. The object is to protect the process of the appellate court from frivolous and unnecessary appeals by means of an exercise of a screening power. A right to appeal may be given by statute, or conditionally, as a result of a grant of leave to appeal. Where the granting of leave is the chosen method of acquiring a right to appeal, unless leave is granted the right does not arise.

The legislature gave, in terms of section 198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], the power to consent to or refuse the right to appeal against a decision of the Magistrates Court under section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] to a judge of the High Court. No other tribunal has that power. The matter was entrusted and intended to be entrusted to his or her discretion. It is for the judge of the High Court alone, in the exercise of his or her jurisdiction, to look at the merits of the application for leave to appeal to that court and decide in the proper exercise of discretion to grant or refuse leave to appeal. In this case, the decision itself, refusing leave, was well within the judge's discretion and the reason that the appeal lacked all merit a wholly proper basis for the decision.

Once a decision has been made in terms of a provision to that effect, refusing leave to appeal to a court, that should end the matter and there is no appeal from that court. The clear intention of the legislature, which the Supreme Court must respect, is that the decision of a judge of the High Court refusing leave to appeal to that court in the exercise of jurisdiction must be final. No legislative enactment provides for an appeal against a decision of a tribunal entrusted with the power to grant or refuse leave to appeal.

What is ordinarily provided for is an application for leave to appeal to the court that has the jurisdiction to hear and determine the appeal, if leave is refused by the court against whose decision the appeal is to lie. It is always a judge of the court to which the appeal lies who has the last say on the matter. In this case, it was a judge of the High Court who had the first and last say on the issue of leave to appeal. An application is not an appeal. It is, therefore, a principle in our legal system that no right of appeal lies to an ultimate Court of Appeal against a decision of an intermediate Court of Appeal refusing leave to appeal to it in the exercise of its jurisdiction on the merits.

The rationale for not providing for a right of appeal against refusal of leave to appeal is obvious.

The object of giving the tribunal power to grant or refuse leave to appeal is to enable it to control what the court should hear and, ipso facto, prevent frivolous and unnecessary appeals that would taint the process of the intermediate appellate court. That object would be defeated if the Supreme Court would also enter the question whether, on the merits, the case was fit for appeal to the intermediate appellate court. The introduction of the “filter” requiring leave would be pointless. There would, in fact, be two appeals in every case in which in the ordinary course of things there would be one.

The intention is that there should be one decision to grant or refuse leave in respect of one right of appeal. If a right to appeal against the refusal of leave were given, there would be nothing to stop a party against whom leave to appeal has been granted also appealing against the decision granting leave. This would be the case because there is no provision in any enactment to the effect that no appeal would lie from a decision of a judge of the High Court granting leave to appeal. The Supreme Court would find itself having to again entertain the same question, whether the intermediate court of appeal should have granted or refused leave to appeal. That would reduce the provisions of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] to an absurdity.

It is considerations of judicial comity which should operate in this aspect.

The principles to be applied in the determination of the question whether an appeal lies against a decision of an intermediate court of appeal refusing leave to appeal to it, were enunciated by LORD HALSBURY LC as far back as 1891 in Lane v Esdaile (1891) AC 210…,. The decision has been hailed as the “foundation stone” (to borrow the words of BAYDA CJS in Morgan v Saskatchewan (1991) 82 D.L.R. (4^th) 443….,.) for these principles.

The application of the principles has the effect of eliminating a potential source of delay in the finalization of litigation. The decision has been followed in other English common law jurisdictions.

The principles were expressly adopted by the Supreme Court of Canada in Canadian Utilities Ltd v Deputy M.N.R. for Customs & Excise (1964) 41 D.L.R. (2d) 429 and Ernewein v M.E.I. (1980) 103 D.L.R. (3d) I. The judgments of the English Court of Appeal in Aden Refinery Co. Ltd v Ugland Management Co. Ltd [1986] 3 W.L.R. 949 and Richards v Richards [1989] 3 W.L.R. 748 confirm that the principles enunciated in Lane v Esdaile (1891) AC 210 are still the law in England.

In Canadian Utilities Ltd v Deputy M.N.R. for Customs & Excise (1964) 41 D.L.R. (2d) 429 CARTWRIGHT J…, said:

“It appears to me to have been consistently held in our Courts and in the Courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.”

In Ernewein v M.E.I. (1980) 103 D.L.R. (3d) I, LASKIN CJC, writing for the majority…, said:

“The scheme of appellate review by intermediate appellate Courts, whose decisions, in turn, are appealable here, distinguishes between cases where the appeal to them is as of right and where the appeal cannot come on to be heard unless leave to appeal is previously obtained. In the one set of cases, the intermediate appellate Court cannot refuse to hear the appeals but in the other set it is empowered to screen out those cases which it decides not to hear on any of the issues sought to be brought forward for hearing on the merits. In my view, an ultimate appellate Court, like the Supreme Court of Canada, should respect this differentiation prescribed for Courts below and should recognize that the legislative policy which supports the differentiation is to leave it to the intermediate appellate Court to decide, where leave to appeal is a precondition of an appeal to it on the merits, whether it will entertain it. If it decides that it will not, that should end the matter so far as any further appeal here is concerned unless there is more commanding language than is found in ss 31(3) and 41(1) to warrant this Court's interference with what is a discretionary determination to refuse to allow an appeal to proceed.”

At page 8, the learned Chief Justice of Canada makes the observation that:

“The logic of LORD HALSBURY'S observation that if a refusal to give leave to appeal is appealable so must be the granting of leave is unassailable. Indeed, what it points up is an obliteration of the distinction in the operation of an intermediate appellate Court between cases which it chooses to hear on the merits and those in which it either refuses to grant leave or those in which, leave having been granted, an appeal is sought to be taken further from the refusal or grant, as the case may be.”

In Richards v Richards [1989] 3 W.L.R. 748…, LORD DONALDSON OF LYMINGTON M.R. said:

“In my judgment, what Lane v Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision.”

In re Housing of the Working Classes Act 1890 Ex parte Stevenson (1892) 1QB 609…, LORD ESHER M.R. said:

“Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given.”

Applying the principles in the determination of the question raised by this application, it is clear that there is no legislative enactment which gives the Attorney General a right of appeal to the Supreme Court from the refusal by a judge of the High Court of leave to appeal to that Court from a decision of a magistrate finding an accused not guilty of a criminal offence at the close of the case for the prosecution. The effect of a refusal by a judge of the High Court of leave to appeal to that court renders the decision by the Magistrates Court final. There was no legal basis for the purported application for condonation and extension of time within which to appeal.

A party cannot seek condonation for non-compliance with a rule that does not exist or one the party is under no duty to obey by reason of his or her peculiar circumstances. There cannot be an extension of time within which to appeal where there is no right to appeal.

It is a principle of law that procedures should be used for the purposes for which they were created.

The matter is struck off the roll with costs.

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The Court holds that it is not in the interests of justice that the applicant be granted leave to appeal against the decision of the court a quo because no constitutional matter arose or was raised in the decision of the court a quo. Consequently, the application has no merit and cannot succeed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

In February 2015 the applicant was charged in the Magistrates' Court at Bulawayo with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The background to the charge is that the applicant was the legal practitioner representing one Lungisani Sibanda (“Lungisani”), who was serving a seven-year prison sentence at Khami Maximum Prison for the offence of car theft. After a failed attempt was made to obtain liberty for Lungisani Sibanda, it was alleged that the applicant obtained a fake warrant of liberation misrepresenting that Lungisani had been granted bail pending appeal. It was alleged that the fake warrant of liberation was given to Lungisani's sister Lilian. She was the one to present the fake warrant of liberation of her brother from prison to the relevant authorities. In the statement she gave to the police, Lilian implicated the applicant.

After a full trial, the applicant was convicted of the offence and sentenced to forty-eight months' imprisonment, of which twelve months were suspended for five years on conditions of good behaviour.

Dissatisfied with the decision of the trial court, the applicant noted an appeal against both conviction and sentence to the High Court on the following grounds:

“Ad conviction

1. The learned magistrate in the court a quo erred, at law, in holding that Absolom Hlupo's evidence was admissible as against his co-accused, who, in this case, was the appellant.

2. The learned magistrate erred in holding that the Warrant of Liberation was fake when no evidence was led from the Clerk of Criminal Court's office in the Provincial Magistrates Court, that no record existed thereat where such bail had been granted warranting the Clerk of Criminal Court's stamp to be used.

3. The learned magistrate erred, at law, in holding that the call history regarding the cellphone was admissible as evidence against the appellant without considering, at all, the veracity, authenticity, and reliability of such evidence. A fortiori, the learned magistrate erred at law in holding that such evidence was admissible when it also clearly infringed on the appellant's constitutional rights and was obtained using a secondary legislation that is not supreme to the Constitution of Zimbabwe. Such evidence, in any event, had not been tendered in terms of the law.

4. The learned magistrate erred in accepting and considering Lilian Tapera's evidence admissible when she testified without being cautioned in terms of the law.

5. The learned magistrate further erred in seeking to have Lilian Tapera's evidence corroborated when, in the first place, it had been taken outside the purview of the law, had clear contradictions, prevarications (sic) and could not be relied upon. Despite this, the learned magistrate held that she had acquitted herself very well totally ignoring the aforesaid.

6. The learned magistrate erred in holding that Lilian Tapera's evidence was adequately corroborated by Joyce Sibanda and Richard Bhebhe's evidence totally ignoring, in the process, the glaring inconsistencies in her evidence and also between her evidence and that of these two witnesses.

7. The learned magistrate erred in holding that the envelope which Lilian Tapera saw at the appellant's office was one and the same envelope which was then delivered at Khami Prison and from which a Warrant of Liberation was discovered, and, on 23 December 2014, not on 24 December 2014 as appeared in the charge.

8. The learned magistrate further erred in holding that appellant's visit to Lilian Tapera's house was the reason why the said witness then gave a different statement at CID Frauds totally ignoring many factors that proved that such a finding was inconsistent with Lilian's own behaviour, her own evidence, and that of her mother, Joyce Sibanda, and the appellant.

9. The learned magistrate erred, at law, in totally disregarding the appellant's evidence which was most probable and accusing him of taking his legal role to the witness stand, and, in the process, ignoring the fact that he stood firmly and gave his evidence clearly.

Ad sentence

The learned magistrate's sentence was excessive and harsh to the extent that it induced a sense of shock in light of:

(a) The grounds of appeal highlighted above.

(b) Its inconsistency with the factors highlighted in mitigation i.e. the appellant's personal circumstances and that no prejudice was suffered.

(c) The fact that it basically amounted to paying lip service to the mitigating factors.”

The High Court found no merit in the appeal against conviction. It was dismissed.

The appeal against sentence succeeded.

The High Court held that the sentence was unduly harsh and excessive. It noted that the applicant was a young lawyer who was at the inception of his career. It was of the view that in passing sentence his immaturity as a lawyer had to be considered. As a result, the applicant's sentence was reduced from forty-eight months to thirty-six months' imprisonment, twelve months of which were suspended for five years on condition that the applicant did not within that period commit an offence involving dishonesty for which upon conviction he was sentenced to imprisonment without the option of a fine.

Still aggrieved, the applicant noted an appeal against the confirmation of his conviction to the court a quo.

In his grounds of appeal, he argued that the High Court erred in accepting the evidence of the two witnesses who testified that the Warrant of Liberation was fake, as such evidence was not in conformity with the law regulating the authenticity of public documents. He further argued that the High Court erred in failing to regard Lilian Tapera as an accomplice witness. The argument was also made that the High Court erred in dismissing the applicant's challenge against the admissibility of the call history of his cellphone. Lastly, it was argued that the High Court erred by failing to rule against the admissibility of the confession by the appellant's co-accused in convicting the applicant.

The court a quo was of the view that the warrant of liberation was fake beyond a reasonable doubt and that the evidence adduced put this fact beyond any doubt. As regards the issue whether Lilian Tapera was an accomplice witness or not, the court a quo held that the High Court was correct in finding that she was not an accomplice, as there was no evidence that she participated in the generation and presentation of the fake warrant of liberation. Further, the court a quo found that the call history from the applicant's cell phone could be used as evidence against him because his objections to its use in the trial court were not substantiated, and that, in any event, he had consented to it being adduced as evidence.

It was the court a quo's finding that, in terms of section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the “CPEA”), the confession of one Hlupo could not be used against the applicant. As such, it was held that the trial court erred in admitting the confession into evidence against the applicant. However, the court a quo found that, even excluding the confession, there was sufficient evidence against the applicant to prove beyond a reasonable doubt that he had committed fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appeal was accordingly dismissed.

On 19 February 2019 the applicant filed the present application for leave to appeal in terms of Rule 32(2) of the Rules, as read with section 167(5)(b) of the Constitution. He alleged that his right to equal protection and benefit of the law in terms of section 56(1) of the Constitution was violated by the court a quo when it upheld the authenticity of the call records.

The applicant further alleged that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated by the court a quo. The allegation was that the applicant's right to challenge evidence was violated because he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated. He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It was also the applicant's allegation that his right to be presumed innocent, in terms of section 70(1)(a) of the Constitution, was infringed upon by the court a quo. The applicant challenged the finding by the court a quo to the effect that “that the provincial court had issued a warrant was not only remote but fanciful.”

The application was opposed by the respondent.

Its argument was that the findings of the court a quo were correct because the evidence proved beyond a reasonable doubt that the warrant of liberation was fake. It was further denied that there were any infringements of the applicant's constitutional rights. Therefore, no constitutional issues arose for determination. It was prayed that the application be dismissed.

APPLICATION OF THE LAW TO THE FACTS

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Rules gives effect to section 167(5)(b) of the Constitution. It provides, in relevant part, as follows:

“32. Leave to appeal

(1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters. It is the highest court in all constitutional matters.

The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regards to the specialized jurisdiction of the Constitutional Court. At p9 of the cyclostyled judgment the Court said:

“The Court is a specialised institution, specifically constituted as a Constitutional Court, with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

In Muza v Saruchera and Ors CC05-19 the Court noted that the purpose of the right of appeal granted to a person under Rule 32(2) of the Constitutional Court Rules, the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Rules, are premised on the existence of a decision by a subordinate court on a constitutional matter.

The purpose of the Constitutional Court Rules is to ensure proper exercise of jurisdiction by the Constitutional Court.

The matter that gives rise to the need for the Constitutional Court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

In Sadziwani v Natpak and Ors CC15-19 the Court emphasised the need for protecting its jurisdiction and process from abuse. It stated the following…,:

“Jurisdiction is the power or competence of a court to adjudicate on, determine and dispose of a matter.

In this regard, the Court is a creature of the Constitution. The principle of constitutional supremacy, as enshrined in section 2 of the Constitution, guarantees that the Court only exercises jurisdiction over matters which are specifically set out in terms of section 167, as read with section 332, of the Constitution.

The principle also ensures that the jurisdiction of the Court, as the highest court on constitutional matters and connected issues, cannot be ousted by legislation.

The Court's power to adjudicate on constitutional matters ought to be construed as a means by which life can be given to the objectives set out in section 3 of the Constitution. The Court, as the highest and most authoritative tribunal in constitutional matters, is tasked with the responsibility of safeguarding the values and objectives of the Constitution. It is charged with the duty of ensuring that these objectives are realized and given effect to. Thus, it is imperative that the Court is not unduly saddled with cases that have no bearing on the interpretation, enforcement or protection of the Constitution.

It is incumbent upon the Court to guard its jurisdiction jealously and eliminate the abuse of its powers. The integrity of the Court is of utmost importance and it ought to be protected.

The deliberately narrow jurisdiction of the Court is meant to shield it from abuse and ensure that it only adjudicates upon that which it is constitutionally mandated to adjudicate on.”

The object of the exercise of jurisdiction by the Constitutional Court is always the protection, promotion and enforcement of the supremacy of the Constitution. Where there is no decision by a subordinate court to justify the allegation of actual or threatened violation of a constitutional provision, the Constitutional Court will have no cause for the exercise of its jurisdiction.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

It is the applicant's case that the decision of the court a quo violated his right to equal protection and benefit of the law, enshrined in section 56(1) of the Constitution, when it upheld the authenticity of the call records and upheld the reliance of the trial court upon them.

With regards to the admissibility of the call history as evidence against the applicant, the court a quo held the following…, in Tungamirai Nyengera v The State SC67-18:

“The record indicates that the issue that was before the court a quo is whether or not the call histories were admissible.

The appellant contended that they were not as the evidence 'clearly infringed on the appellant's constitutional rights, and were obtained using secondary legislation that is not supreme to the Constitution of Zimbabwe.'

Clearly, there is no merit in this ground.

The right to privacy given in the Constitution is derogable and the law under which the call history was ordered by the Magistrates' Court is an example of one such derogation.

The rules governing the admissibility of documentary evidence in criminal trials are aimed at ensuring a fair trial through the elimination of any potential prejudice to an accused person, who is clearly the weaker of the two adversaries involved in a criminal trial.

All these rules, however, yield and fall by the wayside when an accused person consents to the production of documents tendered by the State.

Before the trial court, the appellant consented to the production of the call histories without any demur. There was therefore no issue before that court regarding the admissibility of the call histories.”

The court a quo dismissed the applicant's argument regarding the call history because the applicant had consented to the production of the records at his trial. The finding by the court a quo was a finding of fact, which was made after an assessment of the laws of evidence.

Where an accused person consents to the adduction of incriminating evidence, he cannot turn around and challenge a conviction which was secured based on that evidence.

In coming to this conclusion, the court a quo did not decide a constitutional matter because there was no need to interpret, enforce or protect the Constitution in order to come to the conclusion that the call history was admissible as evidence against the applicant. As such, the applicant's argument in this regard ought to fail.

The applicant also argued that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated.

In this regard, he asserted that his right to challenge evidence was impinged upon because the evidence of one Lungile Moyo was at odds with section 253 of the Criminal Procedure and Evidence Act, in that he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The position of the law is that a purely factual matter does not amount to a constitutional issue.

In S v Boesak 2001 (1) SA 912 (CC), LANGA DP put this position beyond doubt when he stated the following…,:

“A challenge to a decision of the SCA, on the basis only that it is wrong on the facts, is not a constitutional matter.

In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory.

There is a need for finality in criminal matters.

The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises.

Disagreement with the SCA's assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.

An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.”

As a result, the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt is not, for the reasons given above, a constitutional matter.

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated.

He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It is common cause that the applicant was charged with and convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is also common cause that the Criminal Law (Codification and Reform) Act was in force at the time the applicant's trial commenced. The allegation that the conduct for which the applicant was convicted was not an offence at the time of his trial was not made in seriousness and must be dismissed.

The applicant further advanced the argument that the finding by the court a quo that the warrant of liberation was fake infringed his right to be presumed innocent until proven guilty, as enshrined in section 70(1)(a) of the Constitution.

This finding by the court a quo is also alleged to be a violation of section 165(1)(a) of the Constitution, which guarantees that justice must be done to all irrespective of status.

The applicant further argued that section 70(1)(a) of the Constitution must be read together with section 18(1) of the Criminal Law (Codification and Reform) Act. Section 18(1) of the Criminal Law (Codification and Reform) Act provides:

“18 Degree and burden of proof in criminal cases

(1) Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.”

As already found, the findings of the court a quo, regarding the authenticity of the warrant of liberation, are within the realm of the law of evidence, particularly the assessment thereof, and do not give rise to a constitutional issue.

A decision as to the sufficiency of evidence that is required to sustain a conviction in a criminal prosecution does not ordinarily involve the interpretation or application of any provision of the Constitution. Neither does it involve the application of a law inconsistent with the Constitution, or have any other connection with the Constitution that would make that decision a constitutional matter.

The Constitution must be involved in some way before such a finding can be said to raise a constitutional issue within the jurisdiction of the Constitutional Court. The fact that there was no constitutional matter that was raised before and determined by the court a quo cannot be meaningfully disputed. The applicant was merely aggrieved by the non-constitutional findings of the court a quo and this means that the jurisdiction of the Constitutional Court is not triggered in the circumstances.

In De Lacy and Anor v South African Post Office [2011] ZACC 17…, the Constitutional Court of South Africa held as follows regarding an applicant's dissatisfaction with the factual findings of a lower court:

“Then, the essence of their contention was that the Supreme Court of Appeal should have held that indirect intent was sufficient to render an organ of State vicariously liable for the wrongs of its employees and that on the evidence they had established that the Post Office's employees had acted with indirect intent to defraud.

That was the applicants' constitutional focus.

And yet the bulk of its papers were devoted to an exhaustive critique of the factual findings of the Supreme Court of Appeal. Their grievance had all the hallmarks of a mere dis-satisfaction with factual findings.

The Post Office opposed the application. On 9 July 2009, this Court dismissed it for lack of prospects of success.”…,.

See also Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17.

Consequent to the above, the issue relating to the hierarchy of courts, in non-constitutional, matters arises. In this regard, section 169(1) of the Constitution is paramount. It provides as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

In Rushesha and Ors v Dera and Ors CC24-17 GWAUNZA JCC…, interpreted this provision in the following manner:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination. Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”

Section 26(1) of the Supreme Court Act [Chapter 7:13] re-affirms the above position. It states:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court held that the principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act, are clear. At p22 of the cyclostyled judgment, the Court said:

“A decision of the Supreme Court, on any non-constitutional matter in an appeal, is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.

The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

There was no constitutional issue raised before and determined by the court a quo. The dismissal of the appeal by the court a quo remains final. It cannot be appealed against. As such, the application has no merit and it ought to be dismissed.

DISPOSITION

The application is dismissed with no order as to costs.

SC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

I. INTRODUCTIONIn August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section ...

I. INTRODUCTION

In August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:

(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section 360(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], in that on 7 March 1999 they had attempted to place aboard an aircraft dangerous goods, namely, various revolvers, pistols, rifles, knives, and ammunition.

(ii) The second was a contravention of section 37(2) of the Law and Order (Maintenance) Act [Chapter 11:07], in that on the same day they were in unlawful possession of arms of war and offensive materials, consisting of a variety of pistols, revolvers, rifles, firearms, ammunition, knives, teargas, and electric shock devices.

The trial, which was protracted, was presided over by ADAM J and assessors, in the High Court, at Harare. Judgment was delivered on 10 September 1999. The three accused were convicted on both Counts. On 13 September 1999, the learned judge sentenced them to six months' imprisonment with labour on the first Count; and, on the second, to twenty-one months' imprisonment with labour, of which period nine months were conditionally suspended for five years, and six months were to run concurrently with the sentence imposed on Count One.

The effective punishment of six months' imprisonment with labour was then back-dated to 7 March 1999, being the day when the incarceration of the accused as remand prisoners began.

The judgment, on both conviction and sentence, is now reported, sub. nom. S v Blanchard & Ors, in 1999 (2) ZLR 168 (H).

On 15 September 1999, a statement, made by the applicant, then the Attorney-General for Zimbabwe, and presently the Minister of Justice, Legal and Parliamentary Affairs, was published in The Herald newspaper under the headings: “US gunmen's sentence causes outrage, Attorney-General's office expresses shock at court's trivialisation of offence.”

The article that followed reported that:

“The Attorney-General's Office is shocked and outraged by the effective six month jail term imposed on the three Americans convicted for illegal possession of weapons and attempting to take them on board an aircraft. It intends to appeal to the Supreme Court against the sentence which it said had trivialised the seriousness of the crime. In a statement yesterday, the Attorney-General, Mr Patrick Chinamasa, said the sentence handed down by High Court Judge, Justice Adam, 'induces a sense of shock and outrage in the minds of all right-thinking people.'

He said Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon were convicted of offences which were treated as serious by all civilised countries worldwide, including America, which was in the forefront of fighting terrorism and gun-running.

'By imposing sentences which do not match the seriousness of the offences, Justice Adam has in effect trivialised crimes of unlawful possession of arms and has seriously erred in doing so.

The Attorney-General's Office is left bemused by the meaninglessness of it all.

The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.

Mere unlawful transiting of firearms through the territory of Zimbabwe is in itself a serious and gross violation of the sovereign and security interests of Zimbabwe.'

Mr Chinamasa said the attitude taken by the court, in meting out sentences which did not match the severity of the crimes committed, came against the backdrop of repeated complaints made to him by his Law Officers of hostility and verbal abuse directed at them and their submissions by the Bench during proceedings. All these developments erode the office's confidence in the administration of criminal justice.”

Reaction to the article led to the issuance of a citation for contempt of court. It was served on the applicant on 28 September 1999. In its amended form the citation reads:

“TAKE NOTICE THAT on the 28th day of September 1999 The Honourable Mr Justice Adam caused a citation to be issued against you whereby YOU ARE TO APPEAR in person before the High Court of Zimbabwe in Harare on the 1st day of October 1999 at 10:00am or soon thereafter to show cause why an Order of Contempt should not be made for the wilful and intentional contemptuous statement issued by you, which statement you caused to be published or alternatively was published in the issue of the 15th September 1999 of THE HERALD, as appears more fully from the attached copy entitled 'US gunmen's sentences causes outrage'.”

II. THE PROCEDURE ADOPTED BY THE HIGH COURT

The hearing of the proceedings initiated by the citation was assigned to BLACKIE J. He immediately appointed a legal practitioner in private practice to appear as amicus curiae to present the complaint against the applicant.

On 1 October 1999, the learned judge held a pre-hearing conference at which the parties agreed to a time-frame for the filing of a Defence Outline by the applicant and written heads of argument by both him and the amicus curiae. The matter was then postponed for a week.

At the commencement of the proceedings, on 8 October 1999, the amicus curiae particularised the passages in the reported words of the applicant which were considered to contain the contempt alleged against him. These were:

(a) The statement that the sentence handed down “induces a sense of shock and outrage in the minds of all right-thinking people.”

(b) The statement that: “By imposing sentences which do not match the seriousness of the offences, Justice Adam has, in effect, trivialised crimes of unlawful possession of arms and has seriously erred in doing so. The Attorney-General's Office is left bemused by the meaninglessness of it all. The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.'”;

(c) The statement that: “All these developments erode the office's confidence in the administration of criminal justice.”

Thereafter, counsel for the applicant, acting in terms of section 24(2) of the Constitution of Zimbabwe, requested the court to refer to the Supreme Court for determination a number of questions in respect of which it was contended that the proceedings were in contravention of the Declaration of Rights.

The questions, subsequently re-drafted and re-presented to the Court, were these:

“1. Whether the High Court and/or counsel appearing amicus curiae, can, before the High Court, present allegations of contempt of court in the light of the provisions of section 76 and section 18(2) of the Constitution.

2. Whether the choice and assignment to deal with this matter, by the Judge who passed the sentence which was commented upon in the alleged contemptuous statement of the presiding judge, and the selection of counsel to appear amicus curiae by the assigned judge, violates the Attorney-General's right to appear before an independent and impartial court established by law as provided in section 18 of the Constitution.

3. Whether the order issued by the High Court, on 1 October 1999, which order was issued in the presence of the Attorney-General, and, in respect of which the Attorney-General, when invited, elected to make no submissions:

(a) Violates the Attorney-General's right not to be compelled to give evidence as provided for in section 18(8) of the Constitution, given that he was ordered to file a Defence Outline;

(b) Violates the Attorney-General's right to be given adequate time to prepare his defence as provided for in section 18(3) of the Constitution, in circumstances where the Attorney-General, at no stage, applied for or requested an extension of time, nor did he, at any time, object to the time limits set out in the said order, and, in circumstances where the Attorney-General requested a postponement to 6 October 1999 and then 8 October 1999, to enable him to travel to Zambia on Government business, both requests being granted;

(c) Violates the Attorney-General's rights to examine witnesses as provided for in section 18(3)(e) of the Constitution, in circumstances where he was ordered to file argument relating to the facts and the law before the hearing.

4. Whether the procedure in terms of which the Registrar can issue a court application, which is not supported by any affidavit as to facts, as is provided in Order 43 Rule 389, violates the Attorney-General's right to a fair trial as is provided for in section 18 of the Constitution.

5. Whether the citation issued on 28 September 1999, which calls upon the Attorney-General to show cause why an order of contempt should not be made, violates the presumption of innocence of the Attorney General and unfairly places the onus to prove innocence on the Attorney-General in contravention of section 18 of the Constitution.

6. Whether the contempt proceedings, as particularised, violate the Attorney-General's freedom of expression, that is to say, his right to hold opinions and to express such opinions without interference as is provided for in section 20 of the Constitution.”

After reserving his decision on the questions raised, BLACKIE J ruled that it had not been shown to his satisfaction that question 1 concerned a breach of the Declaration of Rights; and that questions 3 and 4 were frivolous and vexatious within the meaning attributed to the phrase in Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S)…,.

He therefore declined to refer these three questions. His Lordship's detailed reasons for so concluding are to be found at 297B-298A and 299E-300D of the judgment, which is reported in 1999 (2) ZLR 291 (H).

However, the request to refer questions 2 and 6 (as modified in the judgment), as well as question 5, was acceded to.

Added thereto was the further question of whether a person charged with contempt of court falls under the protections provided to a person charged with a criminal offence under section 18 of the Constitution.

The learned judge recast the questions in the following manner:

“1. Whether a charge of contempt of court is a charge of a criminal offence entitling the person charged to the protections afforded by the provisions of section 18 of the Constitution.

2. If the answer to question 1 is in the affirmative:

(a) Whether the procedure whereby a person charged with contempt of court is tried by the court which complains about the contempt violates the right of a person, in terms of section 18 of the Constitution, to be tried by an independent and impartial tribunal.

(b) Whether the citation issued on 28 September 1999, which called upon the accused person to show cause why an order of contempt should not be made against him, violates the presumption of innocence on the part of an accused person in contravention of section 18 of the Constitution.

3. Whether the law of contempt of court, as contained in the common law of Zimbabwe, is such as cannot be shown 'to be reasonably justifiable in a democratic society', and, therefore, is incompatible with the provisions of section 20 of the Constitution.”

III. THE REACTION OF THE APPLICANT

The applicant felt aggrieved by the refusal of BLACKIE J to refer questions 1, 3 and 4 to this Court. He lodged a Notice of Appeal against that part of the judgment, setting out several grounds in which it was claimed the learned judge had erred.

In seeking to appeal against the refusal of the High Court to refer the aforementioned questions to the Supreme Court, the applicant obviously overlooked the limitation expressed in section 24(3) of the Constitution. It is there provided:

“Where, in any proceedings such as are mentioned in subsection (2), any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”

The purport of section 24(3) of the Constitution was considered by this Court in S v Mbire 1997 (1) ZLR 579 (S) where…, it was stated:

“It is clear from the wording of this provision that where a referral has been refused by the High Court or by any court subordinate to it, albeit the opinion that the raising of the constitutional question was merely frivolous or vexatious was manifestly erroneous, there is to be no interruption in the proceedings. They are to continue to the stage of determination, which, in a criminal case, is when the accused is convicted and the final sentence delivered: see R v Mhosva 1980 ZLR 74 (G) at 75C; S v Morrisby 1995 (2) ZLR 270 (S) at 271C.

Thereafter, the right to raise the Constitutional question, as a ground of appeal, against such determination becomes permissible.

Quite apart from there being no provision in the Constitution permitting an appeal to the Supreme Court against a refusal to refer to it a question raised under section 24(2) thereof, there is no right of appeal given in either the Magistrates Court Act [Chapter 7:10] or the Supreme Court Act [Chapter 7:13] against such a ruling.

To repeat the self-evident words of KENNEDY LJ in National Telephone Co. Ltd v His Majesty's Postmaster-General [1913] 2 KB 614 (CA) at 621:

'The creation of a right of appeal is an act which requires legislative authority. Neither the inferior nor the superior tribunal nor both combined can create such a right, it being essentially one of the limitation and of the extension of jurisdiction.'”

See also Muchero & Anor v Attorney-General S-107-00, SC107-00…,.

It follows that any determination of the three questions which were not referred may only be made by this Court in the event of an appeal brought before it against a finding by the High Court that the applicant was guilty of contempt.

Appealed SC07-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: MAKONI JA

This is an appeal against refusal of bail by the High Court handed down on 21 January 2021. The appeal is made in terms of Rule 67(1) of the Supreme Rules, 2018 (the Rules) as read with section 121(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA).WHETHER ...

WHETHER OR NOT THE APPELLANT HAS A RIGHT OF APPEAL TO THIS COURT

The appellant anticipated, and correctly so, that an issue might arise whether the appeal is properly before this Court.

In his Written Statement, filed in terms of Rule 67(1), under the heading “Reasons Why Bail Should Be Granted” he stated his reasons in two parts:

The first part is headed: “Why this appeal is an appeal in terms of section 121(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].”

In the Written Statement, he avers, that, this is an unusual novel appeal that is contemplated by section 121(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] (CPEA).

The learned judge a quo, in determining an appeal against the refusal of bail by a magistrate, found that the magistrate had misdirected herself by accepting the appellant's grounds of appeal. Instead of allowing the appeal, he proceeded to determine the bail application himself on the basis of the record that was before the magistrate.

He refused to admit the appellant to bail.

The appellant further avers, that, it is the judge a quo who refused to grant him bail within the contemplation of section 121(1)(b) of the Criminal Procedure and Evidence Act.

He further avers, that, the disposition of the judge, dismissing the appeal against the refusal of bail, is an error. The correct disposition should have read: “In the result, bail is dismissed.”

His only immediate course of action is to appeal in terms of section 121(1)(b) of the Criminal Procedure and Evidence Act.

The appellant becomes more specific in his heads of argument when he addresses the issue under the heading: “IS THIS MATTER PROPERLY BEFORE THE COURT? IS THERE AN APPEAL?”

As predicted, the respondent raised a point in limine, that, the appellant does not have a right of audience before this Court due to section 121(8) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The relevant portions of section 121 of the Criminal Procedure and Evidence Act read:

“121 Appeals against decisions regarding bail

(1) Subject to this section, where a judge or magistrate has admitted or refused to admit a person to bail -

(a) The Prosecutor-General, or the public prosecutor, within forty-eight hours of the decision; or

(b) The person concerned, at any time; may appeal against the admission to or refusal of bail or the amount fixed as bail or any conditions imposed in connection with bail.

(2) An appeal in terms of subsection (1) against a decision of —

(a) A judge of the High Court, shall be made to a judge of the Supreme Court;

(b) A magistrate, shall be made to a judge of the High Court.

(3)…,.

(4)…,.

(5)…,.

(6)…,.

(7)…,.

(8) There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission or refusal of admission to bail of a person charged with any offence referred to in —

(a) Paragraph 10 of the Third Schedule; or

(b) The Ninth Schedule in respect of which the Prosecutor General has issued a certificate referred to in subsection (3b) of section thirty-two;”

In other words, the appellant, having appealed to the High Court, had no right to appeal, again, to the Supreme Court.

It is pertinent, at this stage, to give the factual conspectus leading to the filing of the present appeal.

The appellant, who is the Human Capital Director and Acting Town Clerk of the City of Harare, was arraigned before the Magistrates Court facing a charge of criminal abuse of duty as a public officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ('the Code').

In the alternative, he was charged with theft of trust property in terms of section 113(2)(b) of the Criminal Law (Codification and Reform) Act (the Code).

The basis of the charges was that on 30 October 2014, the appellant, in his capacity as the Human Capital Director of the City of Harare, and in collusion with other City of Harare employees, unlawfully appropriated US$130,000 from the Traditional Beer Levy Account which is maintained by the Council. The said amount was transferred into the appellant's personal bank account without ministerial authority and to the prejudice of the City of Harare residents. The appellant was also said to have purchased a motor vehicle (Land Cruiser Prado) worth USD119,000 which he registered in his name. He thereafter retained the balance.

The appellant sought admission to bail pending his trial in the Magistrates Court. The magistrate refused him bail for the reasons that he was likely to abscond and to interfere with investigations and witnesses.

Aggrieved by that decision, the appellant noted an appeal to the High Court (court a quo), in terms of section 121(1) of the Criminal Procedure and Evidence Act, against the refusal of bail.

He contended, that, the magistrate improperly exercised her discretion in finding that the appellant was likely to abscond and interfere with witnesses when this was not supported by evidence. He further contended she did not properly analyse his submissions.

The court a quo held, that, the Magistrate Court's findings were flawed and found that she had misdirected herself in a number of respects. Having made this finding, the judge a quo stated that “…, I am at large to exercise my discretion…,.”

He proceeded to determine the matter and ultimately dismissed the appeal.

Aggrieved by the dismissal of his appeal by the court a quo, the appellant noted the present appeal.

Counsel for the appellant, in addressing the question whether the appeal was properly before the court, made the following submissions.

The above question arises because of section 121(8) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Before its amendment, the section merely reads:

“There shall be no appeal from a decision or order of a judge in terms of this section.”

The decisions in S v Dwawo 1998 (1) ZLR 536 (S) and Chiyangwa v Attorney General & Ors 2004 (1) ZLR 57 (S) which refer to a “single appeal” or “one chance to appeal” were made in terms section 121(8) of the Criminal Procedure and Evidence Act before its amendment.

These decisions do not apply in casu as the section, as it currently stands, is fundamentally different from its predecessor making the above authorities distinguishable and inapplicable.

The crux of the matter is that only a decision or order made in terms of section 121(2)(b) of the Criminal Procedure and Evidence Act is not appealable to a Judge of the Supreme Court.

In casu, it is contended, that, although the judge of the court a quo was approached in terms of section 121(2)(b), he made his decision in terms section 121(1) of the Criminal Procedure and Evidence Act making his decision appealable.

He concluded by submitting that the matter raises a novel issue which calls for careful consideration.

The novel issue arises in the following manner;

“(i) A judge of the High Court is approached on appeal in terms of section 121(2)(b) of the Criminal Procedure & Evidence Act [Chapter 9:07].

(ii) The judge is asked to set aside a magistrate's decision denying bail, with the appellant arguing that the learned magistrate misdirected herself.

(iii) The judge accepts the appellant's grounds of appeal by agreeing that indeed the learned magistrate misdirected herself in denying bail in the manner she did.

(iv) Despite agreeing with the appellant's grounds of appeal, in respect of the misdirections of the learned magistrate, the judge still does not allow the appeal. Instead, the judge switches to being a court of first instance and determines the bail application himself. He refuses bail on the basis of his own reasons.

(v) The judge refuses bail, not on the basis of dismissing the grounds of appeal, but after accepting the grounds of appeal: in other words, the judge rejects the learned magistrate's findings and substitutes his own findings.”

The ordinary and grammatical construction of section 121 of the Criminal Procedure and Evidence Act reveals the following points:

(a) Section 121(1)(b) of the Criminal Procedure and Evidence Act gives an accused person the right to appeal against a magistrate or judge's decision refusing to admit him to bail. The exercise of this right of appeal is subject to subsection 2 which provides the relevant fora to exercise that right. If bail has been refused in the Magistrates' Court, one's recourse is in the High Court, in terms of section 121(2) of the Criminal Procedure and Evidence Act.

(b) Section 121(8) of the Criminal Procedure and Evidence Act is the limitation to that right.

It stipulates, that, where the High Court has determined an appeal from the Magistrates Court, no appeal shall lie to this Court.

Only accused persons whose charges fall under paragraph 10 of the Third Schedule or the Ninth Schedule, in respect of which the Prosecutor-General has issued a certificate under section 32(3b) of the Criminal Procedure and Evidence Act, can approach the Supreme Court against the High Court's ruling on appeal.

The appellant sought to argue that the court a quo, after accepting the appellant's grounds of appeal, by finding that the learned magistrate had misdirected herself, switched to being a court of first instance and refused the appellant bail on the basis of its own reasons.

Thus, its decision was made in terms of section 121(2)(a) of the Criminal Procedure and Evidence Act and is therefore appealable.

This proposition is, however, not borne out by the record of proceedings of the court a quo. A thorough examination of the judgement of the judge a quo reflects that the judge was clear in his mind what he was seized with - which is an appeal.

At the outset, he sets out the provisions in terms which the matter was before him. These are section 121(1) of the Criminal Procedure and Evidence Act and Rule 6(1) of the High Court of Zimbabwe Rules 1991.

Both provisions deal with appeals against the refusal of bail by an accused.

He then proceeds to lay out the powers of an Appellate Court, as laid down in Barros and Another v Chimponda 1999 (1) ZLR 58 (S), and concludes this part by stating “it is with these principles in mind that I proceed to determine the appeal.”

After analysing the decision of the learned magistrate, and having found that she misdirected herself, he states: “the error means I am at large to exercise my discretion on the issue of abscondment using the same materials as were before the court a quo.”

Further down, when dealing with the strength of the State case, he remarked: “it seems to me that one cannot say, for purposes of this appeal…,.”

In dealing with the issue of surrendering title deeds as part of the bail conditions, he stated: “I raised this aspect with Mr Madhuku at the hearing of the appeal. He said if the Appellate Court were minded to allow the appeal and were to order the surrendering of the title deed then the applicant could do so. I heard this matter on appeal. The title deed is not part of the record.”

Expressing his views regarding the issue of abscondment, the judge a quo stated: “In short, I can only exercise my discretion based on the materials before me. That is my understanding of the dicta that I have quoted from the decision in Barros and Another v Chimponda supra.”

Under the heading “THE OTHER GROUNDS OF APPEAL” the judge a quo stated: “I have addressed the issue in the other grounds of appeal in the course of disposing of the grounds of appeal on abscondment and interference. The need for a separate treatment of the other grounds of appeal therefore falls away.”

He then disposes of the matter in the following manner:

“In the result, the appeal against the refusal of bail be and is dismissed.” (sic)

I have taken a deliberate decision to make reference, in extensor, to the above instances so that there is no doubt in anyone's mind as to what the judge a quo was seized with.

He was clearly dealing with an appeal and disposed of it as such.

Nowhere in the judgment does he create an impression that he was dealing with the matter as a court of first instance. Whether or not the court a quo improperly exercised its discretion, in dismissing the appeal, having found that the magistrate misdirected herself, does not confer upon the appellant an additional fora of appeal to this Court which right is not recognised in the Criminal Procedure and Evidence Act.

In casu, the appellant has no right of appeal for the following reasons:

(i) He approached the court a quo in terms of section 121(1)(b) of the Criminal Procedure and Evidence Act. That appeal was against the Magistrates Court's refusal of bail.

(ii) By approaching the court a quo, he exercised his right in terms of section 121(2)(b); therefore, section 121(8) of the Criminal Procedure and Evidence Act automatically applies.

(iii) There is no right of appeal to the Supreme Court except under the specified exceptions.

The appellant has not shown that the crime he was charged with falls under any of these exceptions.

To that end, he has improperly approached this Court as he exhausted his right of appeal upon the filing of the appeal in the court a quo.

Counsel for the appellant also sought to persuade the court not to have regard to the decisions in S v Dzawo 1998 (1) ZLR 536 (S) and Chiyangwa v Attorney General & Ors 2004 (1) ZLR 57 (S) which refer to a 'single appeal' or 'one chance to appeal'.

His basis for so arguing was that the decisions were made before the amendment to section 121(8) of the Criminal Procedure and Evidence Act was made.

The section, as amended, so the argument goes, is fundamentally different from its predecessor, making S v Dzawo 1998 (1) ZLR 536 (S) and Chiyangwa v Attorney-General & Ors 2004 (1) ZLR 57 (S) distinguishable and inapplicable, so he contended.

I am not persuaded by the submissions.

(i) Firstly, counsel for the appellant deliberately avoided to present argument distinguishing the two cases from the present facts before me.

(ii) Secondly, and critically, the amendment did not change the crux of the provision - which is to prohibit endless appeals. All it did, after the legislature realized there was need to cater for such matters, was to provide exceptions to the general principle. The amendment did not change the position of the law as enunciated in the two cases.

Both cases state, categorically, that, section 121(8) of the Criminal Procedure and Evidence Act ousts the right of an accused person who has appealed to a judge of the High Court against the bail decision of a magistrate to take the judge's decision on appeal to the Supreme Court.

In S v Dzawo 1998 (1) ZLR 536 (S), when refusing the appellant leave to appeal, the court construed section 121(8) of the Criminal Procedure and Evidence Act as follows:

“In construing section 121(8) in context, guidance may be derived, as to the intention of the legislature, from the background to the passing of the Criminal Procedure and Evidence Amendment Act 1997.

The position which obtained before 1 October 1997, when this Act came into operation and repealed and replaced section 121, was this:

Under section 44(5) of the High Court Act, an appeal lay to the Supreme Court, with leave of either a judge of the High Court, or, if he refused the grant, a judge of the Supreme Court, against an interlocutory order or judgment in relation to criminal proceedings before the High Court: see S v Aitken 1992 (2) ZLR 84 (S) at 87A-E.

In enacting the new section 121, the lawmaker must be taken to have been aware of the decision in Aitken's case.

The clear inference is that an alteration to the existing procedure was aimed at.

Subsection (1) of section 121 of the Act provides, that, where a judge or magistrate has admitted, or refused to admit, a person to bail, the Attorney General, or the person concerned, may appeal.

That right is made subject to:

(i) Section 44(5) of the High Court Act, which specifies that leave must be obtained where the decision is that of a judge of the High Court; and

(ii) Any restrictions contained in the other subsections.

Subsection (2) provides, that, an appeal in terms of subsection (1), against a decision of a judge of the High Court shall be made to a judge of the Supreme Court, and against the decision of a magistrate to a judge of the High Court.

Thus, where the initial application for bail was to a judge of the High Court, an appeal, with leave, lies to a judge of the Supreme Court; but, where the initial application was before a magistrate, there is an absolute right of appeal to a judge of the High Court.

Subsection (5) reads:

A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.

The term 'judge' refers to both a judge of the High Court and a judge of the Supreme Court.

Subsection (8), which provides that:

There shall be no appeal from a decision or order of a judge in terms of this section, can only mean, in the context of the subsections referred to, that, the aggrieved person is entitled to a single appeal.

If the initial application was made to a magistrate, the appeal must be to a judge of the High Court; but, if made to a judge, then an appeal lies, with the grant of leave, to a judge of the Supreme Court.

In sum, the change brought about by the amendment to section 121 has removed the right of the person concerned, who had appealed to a judge of the High Court against the decision of a magistrate in relation to bail, to take the judge's decision, subject to leave, on appeal to a judge of the Supreme Court.”…,.

In Chiyangwa v Attorney General & Ors 2004 (1) ZLR 57 (S) the applicant applied to the Magistrate's Court for bail pending his trial. The application was refused and the applicant was remanded in custody. He then appealed against the refusal to grant him bail to the High Court which allowed his appeal.

Acting in terms of section 121(3) of the Criminal Procedure and Evidence Act, the Attorney General advised the learned judge that he intended to appeal against his decision.

Irked by that development, the appellant approached the Supreme Court, on the basis that the Attorney-General had no right of appeal against the High Court order.

In dealing with the issue before it, of whether the Attorney General had, in terms of section 121 of the Criminal Procedure and Evidence Act, the right of appeal against the order of the High Court, the court held:

“I have no doubt in my mind that subsection (8) of section 121 deprives any party, both the accused person and the Attorney-General, of any right of appeal against any order made by a judge in terms of sub section (5) of section 121 of the Act.

Thus, when a judge of the High Court hears a bail application in the first instance, he is exercising his power in terms of section 121(1), and, whatever decision he makes, is appealable.

However, when he hears a bail application as an appeal judge, he does so in terms of section 121(5) of the Act, and, any order he makes, when sitting as such, is not appealable because of the provisions of subsection (8) of section 121.”

See also Attorney General v Fundira SC33-04.

What is fortified in the above cases is that the Supreme Court has no jurisdiction to again hear an appeal which has been determined by the High Court. In other words, the accused person is only entitled to a “single appeal” or a “one chance appeal”.

In Nyamande & Anor v Zuva Petroleum CC08-15, the Court stated, that, where there is no right of appeal, the appeal filed is a nullity.

The present appeal suffers the same fate, it ought to be struck off the roll.

SC10-21 : ROBERT GUMBURA and OTHERS vs FRANCIS MAPFUMO N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

In S v Kachipare 1998 (2) ZLR 271 (S)..., GUBBAY CJ, at p279 C-D, stated;“It is to be noted that subsection (3) of section 198 gives the accused person no right of appeal against a refusal to discharge. Only the Attorney-General, under subsection (4) may, with the leave of a ...

HB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

As stated in Mukwemu v Magistrate Sanyatwe N.O. and Another HH765-15…, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors.

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

Indisputably, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors and to curb the excesses of judicial officers...,. Such errors should be capable of being corrected, reversed or varied at a higher ...

HH438-18 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: CHIRAWU-MUGOMBA J

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”...,.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

SSC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

This is an opposed application for condonation of late noting of an appeal and extension of time within which to file a notice of appeal. The applicant brings the application in terms of Rule 43 of the Rules of Court 2018.THE PARTIESThe first applicant is a former employee of the ...

THE PARTIES

The first applicant is a former employee of the third respondent (the company). He was employed as its Chief Executive Officer. He was dismissed from employment sometime in 2015 following disciplinary proceedings.

The first applicant claimed to own 30% shares in the third respondent through the agency of the second applicant, a duly incorporated company, and, to that extent, a juristic person.

His claim to the directorship of the company is in dispute. He claims to be duly authorised to represent the second applicant, a factor which is also disputed by the respondents.

The first and second respondents are natural persons bearing the same surname of 'Chingwena'.

The third to ninth respondents are duly incorporated companies.

The 10th, 11th, 15th-22nd, 29th, 33rd respondents are also duly incorporated companies clothed with juristic personality.

The remaining parties, though cited, did not appear to oppose the appeal.

The 4th to 38th respondents are companies in which the first appellant alleges the company has investments liable to his 30% claim of the shares allegedly held by the third respondent therein.

THE LAW

The law relating to applications of this nature is well known such that it cannot be the subject of any controversy. The requirements for the application to succeed were spelt out in Kombayi v Berckout 1988 (1) ZLR 53 (S). These are:

(a) The extent of the delay;

(b) The reasonableness of the delay; and

(c) The prospects of success on appeal....,.

BRIEF SUMMARY OF THE CASE

The first applicant approached the court a quo in terms of section 196(1) as read with section 198 of the Companies Act [Chapter 24:03] complaining that the affairs of the company, Croco Holdings (Private) Limited are being, or have been, conducted in a manner that is oppressive or unfairly prejudicial to the interests of some part of the members including himself. The section provides as follows:

“196 Order on Application of Member

A member of a company may apply to the court for an order in terms of section one hundred and ninety-eight on the ground, that, the company's affairs are being, or have been, conducted in a manner which is oppressive or unfairly prejudicial to the interests of some part of the members, including himself, or that any actual or proposed act or omission of the company, including an act or omission on its behalf, is or would be so oppressive or prejudicial.”

The first applicant deposed to the founding affidavit wherein he averred, that, he owns 30% shares in the company whereas the first respondent owns the remaining 70%.

His complaint is that the first respondent has been, and is, abusing his position as the majority shareholder.

He alleged that the first respondent was conducting the company's affairs in an oppressive and prejudicial manner to its members including him.

He averred, that, the first respondent and he were the promoters and founding directors of the company. The first respondent had, however, fraudulently removed his name from the company's register of directors.

He proffered some documentary evidence tending to show that he was an initial subscriber of shares and Director of the company. To that end, he submitted, that, all the essential company records showed that he owned 30% of the shares in the company. He contended that he subscribed for the shares in terms of a shareholding agreement he signed on 27 May 2006.

The first applicant cast aspersions on the first respondent alleging that since 2014 he had conducted himself contrary to the Shareholders Agreement. He further accused the first respondent of making decisions outside the forum of the Board of Directors.

It was his averment, that, in frustration, he offered to sell his shares to the first respondent but he was evasive and non-committal. Eventually, the first respondent turned the tables against him and began to dispute his shareholding in the company. They, however, subsequently met and agreed that the shares be evaluated before disposal. Despite having ordered that evaluation of the shares be carried out, the first respondent, again, made an about turn and denied ever having entered into such an agreement with him.

Having failed to resolve their differences amicably, the first applicant alleged that the first respondent proceeded to suspend him from work leading to his dismissal from employment. He has since challenged his dismissal in the courts.

On that score, he complained, that, the first respondent had violated his rights as a shareholder which rights are protected by the Companies Act. Consequently, he implored the court a quo to provide him with the following relief:

“WHEREUPON after reading documents filed of record and hearing counsel;

IT BE AND IS HEREBY ORDERED THAT:

1. A forensic audit and valuation of the 3rd respondent and its investments in the 4th to 38th respondent be and is hereby ordered to be conducted by an accounting firm registered in terms of the Public Accounts and Auditors Act [Chapter 27:12] to be appointed by the 39th respondent within 5 days of granting this order, all fees and costs of the evaluation being paid by the 3rd respondent.

2. 3rd respondent be and is hereby ordered to pay the applicants the full value of thirty percent (30%) of its total issued ordinary shares and 30% of its investments in the 4th to the 38th respondents within 5 days of completion of the forensic audit and valuation; such value having been established in terms of paragraph 1 above.

3. 3rd respondent be and is hereby directed to reduce 3rd respondent's share capital once the full amount of its thirty percent (30%) issued ordinary shares have been paid by 3rd respondent.

4. The Sheriff of the High Court and/or his lawful deputies be and are hereby ordered to execute terms of paragraph 2 above.

5. The 1st respondent pays the costs of suit on a legal practitioner and client scale.”

The respondents opposed the application, arguing that the first applicant was never a shareholder of the company.

They accused him of relying on forged fraudulent documents and challenged him to prove how he had acquired the alleged company shares.

Riding on that challenge, they raised a point in limine disputing his locus standi.

They submitted, that, only a member of a company, in the form of a shareholder, can bring an application in terms section 196 as read with section 198 of the Companies Act. The first applicant, not being a shareholder of the company, was not a member of the company, and, therefore, not qualified to bring the application before the court a quo.

As a second point in limine, the respondents challenged the first applicant's authority to represent the second applicant.

FACTUAL FINDINGS OF THE COURT A QUO

The court a quo found, that, the application was founded on material falsehoods based on fraudulent documents. Both the Shareholders Agreement and the share transfer documents were adjudged to be fraudulent documents. It also found, that, in relation to the point in limine, the applicant was unable to explain two conflicting CR2 documents.

Thus, the court a quo upheld both points in limine.

Ultimately, the learned judge a quo upheld the two preliminary points, and, in the process, found, that, the application was bad at law in that it did not meet the requirements of section 95 as read with section 196 of the Companies Act.

In the result, he dismissed the application with costs.

PROSPECT OF SUCCESS ON APPEAL

The onus of proof lies squarely on the first applicant to prove, that, if granted the court's indulgence, he has reasonable prospects of success on appeal.

The case of Essop v S [2020] ZASCA 114…, provides guidance on what is required of the applicant to discharge the onus of proof. In that case, the court had occasion to remark that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the applicant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success; that the case is arguable on appeal; or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

The applicants contention is that they have bright prospects of success on appeal because the court a quo ignored uncontested evidence which proved that the first applicant was indeed a shareholder in the third respondent. The first applicant further argued, that, the court a quo erred in holding that the Shareholders Agreement, and the share certificates, were fraudulent documents.

As we have already seen, the respondents challenged the first applicant's locus standi and invited him to prove what he alleged.

The respondent did not have to do more than to simply challenge the first appellant to bring forth credible evidence that would reasonably persuade the Appeal Court to come to a different decision from that of the court a quo.

The cardinal factual issue for determination in the court a quo was whether the first applicant was a shareholder of the company.

It is settled law in our jurisdiction that an Appeal Court will not easily interfere with factual findings made by a lower court. To that extent, case law has set the test for discrediting and upsetting factual findings by a lower court so high that they cannot easily be overturned on appeal.

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01 this Court held that:

“An appeal to this court is based on the record. If it is to be related to the facts there must be an allegation that there has been misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision; and a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

In this case, the court considered all the evidence placed before it and came to the conclusion that the documents relied upon by the first applicant were forged, fraudulent documents.

The applicant's contention is that the Shareholders Agreement, and the share certificate, are authentic and valid because they were prepared and signed by Gwatidzo, the auditor. He accuses the court a quo of ignoring evidence he proffered to the effect that Gwatidzo admitted that he prepared the documents.

As evidence of the alleged admission, he filed a transcript of a long telephone conversation that he had with Gwatidzo…,.

That transcript does not support his assertion that Gwatidzo admitted preparing the disputed documents.

This is what Gwatidzo said at p16 of the transcript:

“A. MR GWATIDZO: I actually do not remember preparing the shareholders agreement. Did I prepare the shareholders' agreement?

…,.

Q. FARAI: In all honest did you not prepare the transfer of shares?

A. MR GWATIDZO: No it was done by Bekker Tilly.”

It is axiomatic that the authenticity of the questioned document was premised on them having been prepared and signed by the auditor Gwatidzo.

Gwatidzo's denial that he is the author of the questioned documents was fatal to the applicant's case. It destroyed the whole foundation and basis of his case.

In his opposing affidavit, the first respondent averred, that, the first applicant forged the Shareholders Agreement document by super-imposing his genuine signature on a copy of the agreement and then photocopying it.

The first applicant did not lead any evidence to rebut the allegation.

Failure to rebut the allegation of forgery of the material document was fatal to the applicants case.

To make matters worse, the first applicant filed two conflicting CR2 Forms.

The first one showed that the company owned all the shares in the second respondent, Moses Tonderai Chingwena Family Trust. Upon realising that the first CR2 Form was fatal to his case, the first applicant filed another CR2 Form with his answering affidavit contradicting the first CR2 which asserted that the third respondent owned all the shares in the second respondent.

These examples of the first applicant's shenanigans portray him as a dishonest, devious person who is prepared to twist the truth in order to advance his nefarious cause.

In light of his deceitful character, the learned judge a quo cannot be faulted for holding, that, the first applicant's cause was founded on lies and fraudulent documents.

That finding is amply supported by the evidence on record.

For that reason, the learned judge a quo's reliance on the dictum of NDOU J in Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03 is apt. In that case, the learned judge observed that:

“It is trite, that, if a litigant has given false evidence his story will be discarded and the same adverse inference may be drawn as if he has not given evidence at all: see Tumahole Bereng v R [1949] AC 253 and South African Law of Evidence IH HOFFMAN and DT ZEFFERT (3rd ed) at page 472.

If he lies about a particular incident, the court may infer that there is something about it which he wishes to hide.”

This should really be the end of the matter as the first applicant has proven to be an unworthy, dishonest litigant.

CCC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the ...

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:

“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Therefore, it is axiomatic, that, where the subordinate court has not determined a constitutional issue, a litigant has no right of appeal to this Court.

Access to the jurisdiction of this Court unavoidably hinges upon the existence of this juridical fact.

It is unarguably the sine qua non of any approach to the specialized forum of the Constitutional Court....,.

This Court, in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC), clarified the parameters of a constitutional matter as follows:

“The mere reference to the Constitution did not make what was said a constitutional matter. Reference by the Supreme Court to section 176 of the Constitution was an obiter dictum. The Constitution was referred to after the ratio decidendi had been arrived at and declared by the court. The effect of what the Court said in relation to section 176 of the Constitution was that its reasoning was not inconsistent with the provisions of that section. That is different from saying the decision on the issues before the court were based on the interpretation and application of section 176 of the Constitution.

It follows, that, where a subordinate court did not take a view of the case that required it to interpret and apply a constitutional provision to determine the issue raised, the matter does not pass for a constitutional matter.

Application for leave to appeal will be dismissed as the subordinate court will have rested its decision on an independent non-constitutional ground.”…,.

The above position was reiterated in Madyavanhu v Saruchera & Ors 2019 (1) ZLR 434 (CC)…, wherein the following was observed regarding the right of appeal to this Court:

“A person has a right to appeal against a decision of a subordinate court on a constitutional matter only. A decision of a subordinate court on a non-constitutional issue is unappealable because the Court has no jurisdiction to review such a decision. The purpose of the procedure of an application for leave to appeal, provided for in Rule 32(2) of the Rules, is to show that the Court has jurisdiction, as provided for in the Constitution, to hear and determine the appeal. In other words, the purpose of the procedure is to ensure that the applicant has a right of appeal to the Court against the decision of the subordinate court.”

From the above-cited authorities, it is evident that an application for leave to note an appeal against the determination of a lower court in the Constitutional Court hinges upon the existence of a constitutional matter.

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

The Intended Appeal

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant.

In the second ground of the intended appeal, the applicant contends that “the court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor…, to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the Magistrates Court.”

I cite in the contention the first ground of the intended appeal in full.

That the decision of the Supreme Court was squarely based on the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is not in dispute.

The ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), correctly understood, has a fairly broad and far-reaching impact on the right of persons to access a court in terms of section 85(1) of the Constitution for the enforcement of fundamental rights and freedoms in circumstances where section 175(4) of the Constitution can also, and should, consequently apply.

I understand the ratio decidendi of the case to lay down the legal proposition, unequivocally and without exception, that, any person who is appearing before any court and intending to raise and rely on any alleged violation of their fundamental rights or freedoms for any relief, must invoke the provisions of section 175(4) of the Constitution or forever lose their right to claim relief for such violations.

Put differently, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) holds, that, the right of any person to access a court, in terms of section 85(1) of the Constitution, if that person is already a party to proceedings before another court, is completely negated and the constitutional jurisdiction of all other courts is ousted.

I pause to note, that, this negation of the right to access other courts or the complete ouster of the jurisdiction of other courts, other than the court wherein the proceedings are underway, is not a mere rule of practice and procedure which, in the interests of justice, may be departed from.

It is an interpretation of the Constitution by this Court.

It therefore forms part of the body of the Constitutional Law of this jurisdiction on access to the courts to enforce a fundamental right or freedom.

In consequence of the above, the broad position of the law then becomes, that, where a person is already before a court in any proceedings, an approach to any other court, in terms of section 85(1) of the Constitution, for the enforcement of a fundamental right or freedom, outside the provisions of section 175(4) of the Constitution, is legally incompetent.

It begets a nullity for want of jurisdiction.

The other court so approached is stripped of its constitutional jurisdiction under section 85(1) by the availability of the procedure under section 175(4).

The above interpretation of the Constitution, by implication, rightly or wrongly, also supersedes and overrules the common law position that grants the High Court inherent jurisdiction over all persons and all matters.

It would appear that the legal position that I have outlined above, unduly restrictive on the right to access courts for the enforcement of fundamental rights and freedoms as it seems to be, is the position that obtained under the repealed Constitution.

It was the settled position under that Constitution, that, any constitutional issues arising in a lower court, during the course of any proceedings, had to be referred to this Court in terms of section 24(2) and could not be brought, pursuant to section 24(3), as a fresh cause of action under section 24(1): see Jesse v Attorney-General 1999 (1) ZLR 121 (S)…,.

Notwithstanding the adoption of the current Constitution, the position of the law remains unchanged.

Section 175(4) of the Constitution is the equivalent of section 24(2) of the repealed Constitution whilst section 85(1) is the current version of section 24(1), albeit improved.

That, the two provisions are located in different chapters of the Constitution detracts not from their effect and import as interpreted by this Court.

If I have correctly understood its ratio decidendi, then, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is authority for the simple proposition, that, where any person is before any court on any non-constitutional matter, but intends to seek redress for the alleged breach of his or her fundamental rights and/or freedoms arising in connection with that matter, he or she must raise the alleged breach before that court and invoke the provisions of section 175(4) of the Constitution if he or she intends to have the matter determined by this Court.

The party may also petition that court directly for any appropriate relief.

The net effect of this position is, that, any purported approach to another court, in terms of section 85(1) of the Constitution, under the circumstances, is not only impermissible but is a nullity as the constitutional jurisdiction of all other courts, the High Court included, is not only arrested but is lost by operation of law.

The import of the decision in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is thus not only to render section 175(4) of the Constitution as regulating access to the Constitutional Court on issues arising during proceedings before any court, as argued by counsel for the applicant, but to render section 85(1) of the Constitution redundant and of no force and effect where proceedings involving the applicant are pending before a court.

On the basis of the above, I must reject the argument by counsel for the applicant, that, section 85(1) of the Constitution creates unimpeded access to the High Court.

It does not always do so.

It only does so where there are no pending proceedings before any other court to which the applicant is a party.

In casu, the applicant was appearing before the Magistrates Court where he correctly raised the allegations of the breach of his fundamental rights. By the mere fact that he was appearing before the Magistrate's Court where he was obliged to raise such allegations, the constitutional jurisdiction of all other courts, under section 85(1) of the Constitution, the High Court, and this Court included, was thereby extinguished and lost.

This is the import of the ratio in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) which the Supreme Court correctly applied.

The ratio of Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), however, does not extinguish the right of the applicant to access this Court under section 85(1) of the Constitution, alleging that a lower court has wrongfully refused a request for a referral made under section 175(4) of the Constitution.

The cause of action in that matter will be the refusal by the lower court to refer the matter to this Court and not the alleged violation of the fundamental rights or freedoms giving rise to the referral.

It is therefore my finding, that, the applicant enjoys no prospects of success on the second ground of the intended appeal. It is most unlikely that this Court will reverse the order of the Supreme Court and find, instead, that, the High Court enjoyed jurisdiction, inherent or otherwise, in the matter.

By parity of reasoning, the third ground of the intended appeal falls by the wayside.

The assumption of jurisdiction by the High Court, in the circumstances of this matter, was erroneous and grievously so. It begot nothing that can be salvaged. Once it is accepted that the High Court did not have any jurisdiction in the matter that concludes the inquiry. Its proceedings fall away automatically by operation of law.

There is thus no possibility, in the circumstances of this matter, that, this court will find, as contended by the applicant, that “the court a quo erred and misdirected itself in not finding that once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

Disposition

The applicant has no prospect of success on its main contention that the High Court had jurisdiction in the matter that was placed before it. Accordingly, his application for leave to appeal cannot succeed.

Regarding costs, I see no justification for making an award of costs in this matter.

In the result, I make the following order:

The application is dismissed with no order as to costs.

CCC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

As was held in Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,:“If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court, as a litigant cannot allege that the subordinate court ...

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Appeal and Leave to Appeal re: Approach iro Limitation to the Right of Appeal

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Ruled By: PATEL JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

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Law Portal Zimbabwe

Appeal and Leave to Appeal re: Approach iro Limitation to the Right of Appeal

SSC23-14 : THE ATTORNEY GENERAL vs ALEC MUCHADEHAMA and CONSTANCE GAMBARA Ruled By: MALABA DCJ

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MALABA CJ

SC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

Appealed SC07-21 : CAINOS CHINGOMBE vs THE STATE Ruled By: MAKONI JA

SC10-21 : ROBERT GUMBURA and OTHERS vs FRANCIS MAPFUMO N.O. and THE NATIONAL PROSECUTING AUTHORITY Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

HB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE Ruled By: MATHONSI J

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL Ruled By: MATHONSI J

HH438-18 : TAFADZWA MAPFOCHE vs THE STATE Ruled By: CHIRAWU-MUGOMBA J

SSC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS Ruled By: BHUNU JA

CCC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

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Law Portal
Zimbabwe

SSC23-14 : THE ATTORNEY GENERAL vs ALEC MUCHADEHAMA and CONSTANCE GAMBARA
Ruled By: MALABA DCJ

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

SC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

Appealed SC07-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: MAKONI JA

SC10-21 : ROBERT GUMBURA and OTHERS vs FRANCIS MAPFUMO N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

HB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

HH438-18 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: CHIRAWU-MUGOMBA J

SSC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

CCC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC