The
respondent appeared before a magistrate at Plumtree facing
allegations of contravening section 3(1)(a) of the Gold Trade Act
[Chapter 21:03], being in possession of gold without a licence and
violating section 182(2) of the Customs and Excise Act [Chapter
23:02], smuggling. The respondent was acquitted on both counts.
The
applicant has filed an application for leave to appeal in terms of
section 61(b) of the Magistrates' Court Act [Chapter 7:10].
The
relevant provision of the Magistrates' Court Act stipulates as
follows:
“61.
If the Prosecutor-General is dissatisfied with the judgment of a
court in a criminal matter –
(a)
Upon a point of law; or
(b)
Because it has acquitted or quashed the conviction of any person who
was the accused in the case on a view of the facts which could not be
reasonably entertained, he may, with the leave of a judge of the High
Court, appeal to the High Court against that judgment.”
The
applicant has filed a draft notice of appeal and the grounds of
appeal are stated as follows:
“1.
The court a
quo
erred when he misconstrued the law in rejecting the evidence of the
State witnesses in toto.
2.
The court a
quo
erred when it acquitted the respondent on facts which could not be
reasonably entertained, the motor vehicle from which the gold was
recovered was in the respondent's name.
3.
The court a
quo
erred by disregarding the fact that at the time of his arrest
respondent did not mention or implicate his defence witness as the
owner of the gold but only made mention of his co-accused at the main
trial who was subsequently acquitted at the close of the State case
due to insufficient evidence.
4.
The court a
quo
erred in believing the testimony of Mabusa Chachaya who alleged to be
the one who had concealed the gold in the wiper compartment of the
car.
5.
Ultimately, the learned magistrate erred at law by finding respondent
not guilty and acquitted him when there was overwhelming evidence
against respondent.”
I
observe that the respondent was acquitted by the Plumtree
Magistrates' Court on the 2nd
of February 2016. This application is being brought almost 6 months
after the judgment. No explanation has been given for the delay in
the late application for leave to appeal. Although there is no time
specified within which such an application should be filed from the
date of judgment, it is trite law that such application should be
brought within a reasonable time. Where there is an inordinate delay,
the application should be filed with an application for the
condonation for the late noting of an application for leave to
appeal. Only when such leave has been granted can the application be
properly argued in court. It is not in the interests of justice, and
indeed of the respondent, to file an application for leave to appeal
which, on face value, is simply meant to buy time and to frustrate
the order of the trial magistrate ordering the release of the
exhibits held by the Minerals and Border Control Unit.
It
is my view, that the office of the Prosecutor General should be
reminded that they cannot simply walk into court at any time and do
as they please. In my mind, that smacks of an attitude that the
applicants can bring any application at any time and at their
pleasure. That attitude cannot be accepted. The respondent expects to
be treated fairly and at any rate there must be finality to any
proceedings.
I
have taken a close look at the proposed grounds of appeal and it is
clear that the applicant does not set out clearly whether there are
any points of law being raised, but, rather, there are general
grounds criticizing the manner in which the trial court assessed the
evidence. There is nothing to suggest that the decision reached by
the trial court constitutes a view of the facts which could not be
reasonably entertained. The applicant should establish that the
inference drawn from the primary facts is so inconsistent with logic
and common sense that the judgment is perverse. It is not enough to
state that the trial court made mistakes in the evaluation of the
evidence or that he should have treated the assessment of the
evidence in a particular manner.
In
the case of Attorney-General
v Paweni Trade Corp (Pvt) Ltd
1990 (1) ZLR 24 (S) KORSAH JA…, held that:
“It
is only when the inference drawn from the primary facts is so
inconsistent with logic and common sense that the Attorney-General
can succeed…,. If there are reasonable grounds for taking certain
facts into consideration, and all the facts, when taken together,
point inexorably to the guilt of the accused beyond pre-adventure,
but the trial court nonetheless acquits the accused, then the trial
court has taken a view of the facts which could not be reasonably be
entertained. Put in another way, if, on a view of the facts, the
court could not reasonably have inferred the innocence of the
accused, then the verdict of acquittal is perverse, and the
Attorney-General is entitled to attack it.”
See
also the
remarks in Attorney-General
v Lafleur and Another
1998 (1) ZLR 520 (H).
In
the more recent cases of Prosecutor
General v Beatrice Mtetwa and Another
HH82-16 and Prosecutor
General of Zimbabwe v Tendai Chinembiri
HB125-16, this court did emphasize the importance of filing an
application for leave to appeal timeously. In both cases, the court
ruled that the Prosecutor General must not take the court for
granted. In my view, although no time limit is laid down for bringing
an application in terms of section 61 of the Magistrate's Court
Act, it is clear that this drastic power to appeal against an
acquittal must be exercised reasonably and in the interests of
justice and therefore such application should be filed without delay.
In
the result, I am not satisfied that the applicant has discharged the
onus on him to establish that this case falls within the ambit of the
provisions of section 61 of
the Magistrates' Court Act [Chapter 7:10].
Further, I do not consider it in the interests of justice that the
applicant should be allowed to proceed with this appeal.
I
would accordingly dismiss the application for leave to appeal.
