HUNGWE J: The appellant was a magistrate stationed at
Chinhoyi Provincial Magistrates Court, Mashonaland West. He was arraigned in
that court on two counts of contravening s 3(1) (a) (ii) of the Prevention of
Corruption Act, [Cap 9:16]and, after a contested trial,
convicted. He was, on 3 April 2006, sentenced to undergo thirty six months
imprisonment of which twelve months were suspended on condition of future good
behavior. He was represented by counsel of his choice throughout his trial.
After sentence was pronounced, he noted an appeal against both conviction and
sentence on 11 April 2006. AdvocateMatinenga prepared appellant's heads
of argument which were filed on 28 February 2008. The respondent's heads of
argument were filed on 30 May 2008. The reason for the delay appears to be
related to problems which besotted the courts around that time regarding
stationary and equipment. (The record reflects that the legal practitioners
offered to assist with bond paper). There is no explanation as to what
transpired between 2008 and 2011 but there is a certificate by the parties
certifying, in April 2012, that the record was an accurate transcript of the
original record of trial proceedings. On the date set for the appeal hearing,
13 November 2012, AdvocateUriri appeared for the appellant. He applied
for the postponement of the matter, and by consent, the matter was postponed to
20 November 2012. On that date however, there was no appearance by the
appellant or his counsel. Counsel for the State, MrMugabe, moved for
the dismissal of the matter on the merits as the matter was long outstanding on
the roll. We agree with him. He presented argument for the respondent. After
hearing MrMugabe, for the State, we dismissed the appeal on the turn
and indicated our reasons will follow later. These are the reasons.
The first issue that exercised our minds was whether, in light of non-appearance
by the appellant, we could still proceed to hear argument from the respondent
and decide the matter on the merits. In Matamisa vMutare City
Council (A-G intervening) 1998 (2) ZLR 439 (S) the Supreme Court expressed
itself, when faced with a similar situation, as follows:
“The comments of the Attorney-General about the nature of a
hearing at the Supreme Court are, in my view, correct. An appeal is not a
trial. It is not necessary to go over everything at the appeal hearing. Heads
of argument are submitted, among other reasons, to shorten oral argument. The
court will almost certainly have read these before the hearing. If so, it may
consider that it is not necessary to waste its and counsel's time while counsel
simply reads out what he has already put in writing. Sometimes the court may
ask counsel to deal only with particular points. It may advise counsel that it
does not want to hear him at all, because its prima facie
view is that counsel's argument is correct, and will ask the other side to
present his argument in full.
All this is part of the way this court and other courts of
appeal elsewhere in the world have always conducted their proceedings.” (per
EBRAHIM JA @ p444E-G).
In my respectful view, these sentiments apply with equal force in appeals
before this court. Incasu, both the appellant and the respondent were
represented through counsel when the matter was by mutual consent postponed to
a specific date and time at the request of the appellant. Yet there is no
explanation for non-appearance by the appellant on the day of hearing. The
respondent, in my respectful view, is correct in urging this court to hear and
dispose of the matter on the merits. The matter cannot simply be struck off the
roll. This, in my view, is inconsistent with the requirement to treat all
appeals generally as urgent matters. In any event, having formed our prima
facie view of the matters raised in this appeal, a determination on
the merits will move the matter to the next step and bring it to finality
sooner rather than later.
Rule 4 of the Supreme Court (Magistrates Court) (Criminal
Appeals) Rules, Statutory Instrument 504 of 1979, provide:
“The prosecution and finalization of all appeals in terms
of these rules, especially any appeal, other than an appeal by the
Attorney-General in terms of paragraph (a) of s 61 of [Cap 7:10],
relating to a case in which the convicted person has received an unsuspended
prison sentence, shall be treated by all persons concerned as a matter of
urgency.”
Appeals in the High Court are governed by s 38 of the High
Court Act, [Cap 7:06]. Section 38 of that Act provides, in
respect of appeals;
"38 Determination of appeals in ordinary cases
(1) Subject to this section and section thirty-nine,
on an appeal against conviction the High Court shall allow the appeal and quash
the conviction if it thinks that the judgment of the court or tribunal before
which the appellant was convicted should be set aside —
(a) on the ground that —
(i) it is unreasonable; or
(ii) it is not justified, having
regard to the evidence; or
(b) on the ground of a wrong decision on any
question of law; or
(c) because on any other ground there was a
miscarriage of justice; and in any other case shall dismiss the appeal."
Therefore unless, upon a reading of the record of the trial
proceedings and the heads of argument filed by the parties, the court is of the
opinion that an appeal has merit on the basis of one or more of the matters set
out in that section, it shall dismiss the appeal. There is no express
requirement for oral argument to be presented before the court could exercise
its appeal powers.
Although there are three grounds of appeal put forward by
the appellant, the heads of argument relied upon by counsel took only one
point. It is that the State had not proved all the essential elements of the
offence and as such the presumption provided in s 15(2) of the Prevention of
Corruption Act, [Cap 9:16] could not be lawfully be invoked
in favour of the State.
In a carefully reasoned judgment, the Provincial Magistrate, who presided over
the trial in the court a quo, found the following facts to have been
established by the evidence adduced before him. At p 8 of the judgment he
said:
“In count 1, the court carefully analysed the evidence of
all State witnesses and found it highly improbable that these witnesses who
came from different backgrounds met and fabricated their evidence. Sarah and
Agnes saw accused in his office. They spoke to him. They saw him holding a red
pen and with it he marked some items on exh 1 which Sarah was supposed to get
even before the matter was finalized. With the same red pen, Agnes was given a
piece of paper which had two of the accused's phone numbers. The same numbers
were used by Agnes and they connected her to the accused and in the presence of
Sarah. Sarah and Agnes saw accused use a red pen to mark exh 1. These two heard
accused promise that Sarah should be able to get the items marked even before
the matter was finalized.”
It should be recalled that the witness Simon Kasukuwere, a
prison officer, had deposed to being sent by the appellant to collect money
from someone at Greens. He did not know the person who was to give him money on
the appellant's behalf nor the amount to be given let alone the reason why the
appellant was to be given money by this person. He had deferred to the
appellant's instruction as he considered his rank subordinate to that of the
appellant. Regarding Simon, Agnes and Sarah, the magistrate said:
“They all said the accused received $500 000-00 from Sarah.
Sarah and Agnes fully corroborated each other in all material respects. They
visited the accused's office and had a discussion with him. They were told that
lunch should be bought if Sarah's case was to be heard on the 29th
of December. Indeed, on that day the matter was not postponed as feared but it
was heard before the accused and Sarah got the relief she had prayed
for.”
The appellant contends that Agnes and Sarah never sought to corrupt the
appellant. Reliance is placed on a few lines (3 lines on p 13; 3 lines on p 65
and 10 lines on p 79) for this contention. What appears at p 13 reflects events
leading to the arrest of the appellant well after the offence had been
committed. At p 65 Agnes simply repeats the demands for lunch by the appellant
which she did not realize was an offence yet the payment was meant to induce
the appellant to show favour in the execution of his official duties. Page 79
deals with amounts which do not form part of count one for which appellant was
convicted. He was acquitted on count 2 to which these amounts relate. The
evidence on which the appellant was convicted clearly shows, as the learned
magistrate demonstrated, that it is the solicitation by the appellant for money
for lunch which form the basis for drawing an inference in terms of s15 (2) of
the Prevention of Corruption Act, that this request, if acceded to, would
result in the appellant showing favour towards the treatment of her case on 29
December. Indeed ZW$500 000-00 was paid to the appellant through Simon and on
29 December, by Sarah Rice, who only partially obtained access to some items
which were under legal contestation at court in a matter presided over by the
appellant.
Counsel for the appellant in his heads of argument urged this
court to find that the State had not proved all the essential elements of the
offence charged. He relied on S vChogugudza 1996 (1) ZLR 28
(S) where the following appears at p30 E-F):
“… before the State could rely on the presumption in s 15
(2) of the Prevention of Corruption Act, it would have to show:
(a) that the accused was a public officer;
(b) that in the course of his employment or in breach
of his duty;
(c) he did something which,
objectively considered, showed favour or disfavour to another.”
The interpretation which the appellant gave to s 3(1)(a) of
the Act is not supportable on the facts. Counsel correctly points out that the
above passage was stated in the context of s 4 of the Act. It must be accepted
that there is a clear distinction between the two sections. Whilst s 3(1) sets
out what constitutes corrupt practices, s 4 is concerned with offences by
public officials. As such there is no need to import some interpretation when
the literal interpretation gives effect to the clear intention of the
legislature.
In the absence of ambiguity it must be taken to mean what
it says and say what it means. There is simply no basis for reading anything
into the words employed or for putting a particular gloss on a meaning so plain
and patent.
"The rule of construction is 'to intend the
Legislature to have meant what they have actually expressed'. The object of all
interpretation is to discover the intention of Parliament; 'but the intention
of Parliament must be deduced from the language used', for 'it is well accepted
that the beliefs and assumptions of those who frame Acts of Parliament cannot
make the law'.
Where the language is plain and admits of but one meaning,
the task of interpretation can hardly be said to arise . . ."
See Maxwell on Interpretation of Statutes 12 ed at p 28,
quoted by BEADLE CJ in S vTakaendesa 1972(4) SA 72 (RA) at 75
G; 1972(1) RLR 325(A) at 332 E-F.
Section 3(1)(a)(ii) provides:
"3. Corrupt Practices
(1) If----
(a) any agent corruptly solicits or accepts or obtains, or agrees to accept or
attempts to obtain, from any person a gift or consideration for himself or any
other person, as an inducement or reward -
(i) for doing or not doing,
or for having done or not done, any act
in relation to his principal's affairs or business; or
(ii) for showing or not showing,
or for having shown or not shown, favour or disfavor to any person or thing in
relation to his principal's affairs or business:
(b) …
…
(f) …
he shall be guilty of an offence."
Section 15 (2) (a) then says;
"If it is proved in any prosecution for an offence in terms of section three
or four that:
(a) Any agent has solicited, accepted,
obtained, agreed to accept, or attempted to obtain any gift or consideration
for himself or for any other person, it shall be presumed, unless the contrary
is proved, that the agent did so in contravention of section three…"
Counsel's argument suggests that for conviction to follow,
the appellant ought to have done something which, objectively considered,
showed favour or disfavour to another, in this case to Sarah. I disagree. As
would be seen from s 3(1) above, what constitutes the offence in terms of s 3
(1) (a) (ii) is soliciting, accepting or agreeing to accept or attempting to
obtain, from any person a gift or consideration for himself or any other person
as an inducement or reward, for showing or not showing or for having shown or
not shown, favour or disfavor to any person in relation to his principal's
affairs or business. What is punished is what is set out in that section. In my
respectful view the learned trial magistrate, having correctly found that the appellant
solicited for money for “lunch” which money was subsequently paid by Sarah
through Simon whom the appellant had sent, cannot be faulted for convicting the
appellant. The proved facts show that the appellant was approached by Agnes and
Sarah after the clerk of court indicated that the matter may not be heard
early. In the discussions that took place in his office he had made certain
undertakings. He has also indicated to the two women that he will need money
for “lunch”. Subsequent to this he had sent Simon to collect a “parcel” from
the ladies one of whom had a matter pending in his court. Simon was given
ZW$500 000- 00 which he passed on to the appellant. In these circumstances I
find no merit in the argument advanced on the appellant's behalf. I therefore
dismiss the appeal against conviction. There is no appeal against sentence.
Nothing further needs be said. The following order is therefore made.
“The appeal against conviction be and is hereby dismissed.”
MAVANGIRA J: agrees
Muchineripi & Associates, appellant's legal
practitioners
Attorney General's Office, respondent's
legal practitioners
