This
is an application for leave to appeal against the first respondent's
acquittal in terms of section 61 of the Magistrates Court Act
[Chapter
7:10].
The
applicant is the Prosecutor General of Zimbabwe. The first respondent
is Douglas Togarasei Mwonzora. The third respondent, Mr A. Masawi, is
a magistrate employed by the Judicial Service Commission at Harare
Magistrates Court and is cited nominus
officiae.
The
applicant seeks to be granted leave to appeal against the acquittal
of the first respondent by the second respondent sitting at Harare on
16 February 2014 in a criminal case CRB R123/12.
The
application is opposed.
The
background facts to the application are as follows;
On
16 January 2014 the first respondent was arraigned for trial in the
Magistrates Court sitting at Harare facing two counts of theft of
trust property as defined in section 113 of the Criminal Code
[Chapter
9:23].
In
Count 1, the charge is that on 23 December 2006, and at Mwonzora &
Associates, 4th
Floor South Wing, Fidelity Life Towers, Releigh Street, Harare the
first respondent, being a legal representative of Everson Shephered
Dandadzi, received cash in the sum of Z$3,500,000= said to be
equivalent to US$14,000= from Everson Shephered Dandadzi as a refund
for cancellation of an Agreement of Sale of an immovable property
located at No.157 Meyrick Park, Mabelreign, Harare and that instead
of remitting the said money to Messrs Manase and Manase, legal
representatives of Stephen Matongo, the purchaser of the said
immovable, the first respondent unlawfully and intentionally
converted the said amount to his own use and failed to hand it over
to Everson Shephered Dandadzi on demand by Everson Shephered
Dandadzi.
In
Count 2, the charge is that on a date unknown, but during the period
of extending 1 January 2007 to 31 January 2007, at the same place as
in Count 1, the first respondent, being a legal representative of
Everson Shephered Dandadzi, received in his possession cash in the
sum of Z$195,000,000= from Stephen Matongo as purchase price cash
adjustment and transfer fees, and, instead of remitting the said
amount to Everson Shepherd Dandadzi, the seller of the said immovable
property described in Count 1, the first respondent unlawfully and
intentionally converted the said amount to his own use and failed to
hand it over to Everson Shepherd Dandadzi on demand by Everson
Shephered Dandadzi.
The
facts giving rise to the charges are summarized in the State Outline.
It
is common cause that Everson Shephered Dandadza (Everson) entered
into an Agreement of Sale of an immovable property, being an
undeveloped Stand called No.57 Meyrick Park with the buyer, one
Stephen Matongo (Stephen). The immovable property was owned by
Everson and the purchase price was Z4 billion dollars and Everson
used an Estate Agent, CB Richard Ellis.
It
is alleged that on 23 May 2006 the buyer, Stephen Matongo, paid an
agreed Z$2 billion through the Estate Agent which money was
transferred into Everson Shephered Dandadza's account. On 2 and 4
August 2006, the buyer, Stephen Matongo,
made two payments of Z$500,000= each. There was a delay to pay the
outstanding balance of Z$2,000,000=. As a result of this delay the
seller, Everson Shepherd Dandadzi, engaged a legal practitioner,
being the first respondent, to cause the buyer, Stephen Matongo,
to now pay an adjustment price of Z$160,000,000= and transfer fees of
Z$35,000,000=. It is alleged that the buyer, Stephen Matongo,
failed to pay, hence, on 8 January 2007, the seller, Everson Shepherd
Dandadzi, instructed the first respondent to cancel the Agreement of
Sale and gave the first respondent Z$3,500,000= (revalued) as refund
to the buyer, Stephen Matongo,
after which the first respondent issued receipt 070.
It
is alleged that the first respondent did not remit the money to the
buyer, Stephen Matongo, through his legal practitioners, Manase and
Manase, but, instead, converted it to his own use. The complainant,
Everson Shephered Dandadza, being the seller, reported the matter to
the police of theft of Z$3,500,000= (revalued) by the first
respondent which the State alleges its equivalent to US$14,000= and
that it was not recovered.
In
relation to Count 2, it is alleged that the buyer, Stephen Matongo,
later made a delayed payment of cash adjustment of the purchase price
of Z$160,000,000= (revalued) and transfer fees of Z$35,000,000=
(revalued) giving a total of Z$195,000,000= which money was paid into
the first respondent's law firm account at Barclays Bank. However,
the seller, Everson Shephered Dandadza, rejected the delayed payment
and had cancelled the Agreement of Sale due to hyperinflation.
Everson then instructed the first respondent to return the money to
the buyer, Stephen Matongo.
It is alleged, in Count 2, that the first respondent, instead,
converted the money to his own use.
The
first respondent pleaded not guilty to both Counts, and, in brief,
gave his Defence Outline as follows:
The
first respondent said he only became aware of the Agreement of Sale
between Everson Shephered Dandadza and Tail-spring Investments,
represented by Stephen Matongo, as the buyer, in September 2006 well
after the Agreement of Sale had been signed and initial payment made
as Everson Shephered Dandadza, through the agency of CB Richard
Ellis, had sold the property for Z$4 billion and signed the Agreement
of Sale on 23 May 2006. The first respondent said the seller, Everson
Shephered Dandadza, in September 2006, informally approached him
alleging the buyer, Stephen Matongo,
was in breach of the agreement of sale as he had failed to timeously
pay the balance of Z$500,000,000= and wanted to cancel the Agreement
of Sale as Stephen had refused to pay the price adjustments of
Z$36,000,000,000=. The first respondent said he was formally engaged
by Everson on 13 December 2006 after which Everson paid consultation
fee of Z$5,000= and service fee of Z$80,000= on 21 December 2006.
In
relation to Count 1, the first respondent said the Z$3,5 million
(revalued) was only receipted at his offices on 16 March 2007 and not
in 2006 as is alleged. The first respondent said he paid it out,
through his law firm, to Tailspring Investments, represented by the
buyer, Stephen Matongo, on 25 March 2007. The first respondent
however said this cheque was never presented for payment and was
outstanding at the close of the first respondent's financial year
in August 2007 as per both the cash book and audit. The first
respondent therefore denies converting the Z$3,5 million (equivalent)
to his own use in Count 1.
In
relation to Count 2, the first respondent said Everson Shephered
Dandadza, on his own, negotiated the purchase price for a further
payment of Z$160,000,000=. The first respondent admits that the
amount of Z$35,000,000=, being transfer fees, and Z$160,000,000=,
price adjustment, were paid into his law firm's account on 17 April
2007 by the buyer, Stephen Matongo. The first respondent said he
advised Everson, the seller, but Everson refused to accept the money
alleging payment was late and in breach of the agreement of sale. The
first respondent said this amount was rendered valueless while in his
law firm's books due to hyperinflation when the Zimbabwean currency
was revalued. The first respondent also denies converting this amount
to his own use.
The
State led evidence from the seller, Everson Shephered Dandadza, the
buyer, Stephen Matongo, the manager of Barclays Bank, one Etwell
Mhlanga, and Mambo Nyeperai, an Accountant with the law firm Manase
and Manase.
At
the close of the State case, the first respondent successfully made
an application for discharge in terms of section 198(3) of the
Criminal Procedure and Evidence Act [Chapter
9:07].
The trial court discharged the first respondent at the close of the
State case in respect of both Counts.
The
applicant is aggrieved by this decision and intends, as per the draft
grounds of appeal, to appeal against this decision. However, in order
to do so the applicant should comply with the provisions of section
61 of the Magistrate Court Act [Chapter
7:10]
which provides as follows:
“61
Attorney General may appeal to High Court on point of law or against
acquittal
If
the Attorney General is dissatisfied with the judgment of a court in
a criminal mater…,;
(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 this judgement;”…,.
In
the
case of Attorney
General v Lafleur & Anor
1998 (1) ZLR 520 (H), BLACKIE J stated that the onus
is on the Attorney General (the applicant in
casu)
to bring the application within the terms of section 61 of the
Magistrates Court Act [Chapter
7:10].
In this regard, the learned Judge said…,;
“A
point of law must relate to a decision made by the trial court on a
legal issue relevant to the acquittal (which the applicant believes
to be wrong) and on which the trial court based its acquittal.”
The
Learned Judge continued at 522D–E;
“The
phrase 'a view of the facts which could not reasonably be
entertained' means something more than mistakes or negligence on
the part of the trial court. In the case of Attorney
General v Paweni Trade Corp (Pvt) Ltd
1990 (1) ZLR 24 (S) KORSHA JA, with the remainder of the court, 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 on the facts, when taken together,
point inexorably to guilt of the accused beyond per adventure, but
the trial court nonetheless acquits the accused, then the trial court
has taken a view of the facts which could not reasonably be
entertained. Put 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 the acquittal is perverse, and the Attorney General is
entitled to attack it.'”
The
proposed grounds of appeal are couched as follows;
“1.
2nd
Respondent erred and misdirected himself when he discharged 1st
respondent at the close of the State case despite a prima
facie
case that had been established by the prosecution.
2.
2nd
Respondent erred and misdirected himself at law by accepting
assertions by the 1st
respondent, made during cross examination of State witnesses, as
though they were evidence by the 1st
respondent. 2nd
respondent was not in a position to decide on the veracity of the
versions placed before him without hearing the defence once a prima
facie case had been established.”
Counsel
for the first respondent raised basically two points in
limine.
The
first point in limine taken is that the application for leave to
appeal was made well out of time, and, on that basis, the application
should be dismissed.
The
second point is that the proposed grounds of appeal are bad at law as
they do not meet the requirements of both section 61 of the
Magistrates Court Act [Chapter
7:10]
and section 198(3) of the Criminal Procedure and Evidence Act
[Chapter
9:07].
I
now deal with the points in limine seriatim….,.
Whether
the application for leave to appeal
is out of time
It
is common cause that the first respondent was discharged and
acquitted on 13 February 2014 and the application for leave to appeal
was filed on 9 May 2014. A period of three (3) months had lapsed.
The
first respondent's argument is that the applicant ought to have
filed an application for leave to appeal within the time an appeal
would ordinarily take to be filed from the Magistrates Court to the
High Court, which he said is ten days. The first respondent also
submitted that this court should be guided by the time limit within
which a review should be filed, which is eight (8) weeks. It is the
first respondent's contention, therefore, that this application for
leave to appeal, made after more than three months, had lapsed is
hopelessly out of time.
I
am not persuaded by the first respondent's submissions in this
regard.
It
should be noted that no time limit is prescribed, both in section 61
of the Magistrate's Court Act [Chapter 7:10] and section 198(4) of
the Criminal Procedure and Evidence Act [Chapter 9:07] which both
provide for the need to seek leave to appeal by the Prosecutor
General.
It
is however trite that the application for leave to appeal, made in
terms of section 61 of the Magistrates Court Act [Chapter 7:10],
should be made without delay and within a reasonable time to ensure
that the interests of justice are safeguarded. This point was driven
home by BLACKIE J in the case of Attorney General v Lafleur and Anor
1998 (1) ZLR 520 (H)…, in which the learned judge said:
“No
time limit is set in section 61 of the Act or in any rules of this
court within which the Attorney General must file his appeal in terms
of that section. It is not clear from the history of the section
whether the absence of a time limit by which the applicant must act
is by accident or design. It is unusual not to have such a time limit
and this section is in stark contrast to the requirements of all
other appeals. The omission is particularly striking because the
concept that a man, once acquitted of an offence, may not be retried
for that offence is a fundamental principle of criminal law. The
overriding reason for this principle is the need for finality in
litigation…,. This court, notwithstanding the absence of a time
limit to the making of the application for leave to appeal, may, in
considering the application, take into account the question of delay
by the applicant in filing his application in terms of section 61 and
decide the application on that point.
Even
though section 61 has modified the common law to a limited extent,
the exercise of the applicant's powers in terms of that section is
subject to the leave of the court and
must be exercised reasonably and in the interests of justice. What is
reasonable and in the interests of justice is a matter of fact in
each particular case.”…,.
Counsel
for the applicant submitted that the delay of three (3) months is not
inordinate as the record had to be transcribed - a process outside
the direct control of the applicant.
While
this explanation is not satisfactory, I am not persuaded that a delay
of three months, in this case, is sufficient to cause the dismissal
of the application.
While
in the case of Attorney
General v Lafleur and Anor 1998 (1) ZLR 520 (H)
a delay of fourteen (14) months was held to be inordinate and
unacceptable, in the case of Attorney
General v Bvuma & Anor
1987 (2) ZLR 96 (S) leave to appeal was granted despite the delay of
eight (8) months. I therefore find no merit in respect of this point
in
limine
raised.
Whether
the proposed grounds of appeal are fatally defective
I
have serious difficulties in appreciating the argument raised by
counsel for the first respondent
in
respect of this point in limine.
The proposed grounds of appeal are premised on the provisions of both
section 61 of the Magistrates Court Act [Chapter
7:10]
and section 198(3) of the Criminal Procedure and Evidence Act
[Chapter
9:07].
I find the proposed grounds of appeal to be short, concise and clear
as is required by the rules of the court. This point in limine
also
lacks merit.
I
now turn to the merits of the application.
It
is trite that, in an application of this nature, the applicant, in
order to succeed, has to establish that the intended appeal enjoys
reasonable prospects of success. See S
v Mutasa
1988
(2) ZLR 4 (S).
I
understand the applicant's case to be that the second respondent
erred at law by failing to apply the legal principles in section
198(3) of the Criminal Procedure and Evidence Act [Chapter
9:07]
to the facts of this case and improperly assessed the evidence
adduced by the State at the close of the State case.
The
second respondent's appreciation of the law in relation to an
application for discharge at the close of the State case is beyond
reproach. Such an application is in terms of section 198(3) of the
Criminal Procedure and Evidence Act which provides as follows;
“98(1)…,
not relevant.
(2)…,
not relevant.
(3)
If, at the close of the case for the prosecution, the court considers
that there is no evidence that the accused committed the offence
charged in the indictment, summons or charge, or any other offence of
which he might be convicted thereon, it shall return a verdict of not
guilty.”
The
general principles enunciated in a number of decided cases, in
interpreting the provisions of section 198(3) of the Criminal
Procedure and Evidence Act [Chapter
9:07],
is that the trial court is enjoined to discharge an accused person at
the close of the prosecution case;
(a)
Where there is no evidence to prove the essential elements of the
offence. See Attorney
General v Bvuma & Anor
1998
(2) ZLR 96 (S).
(b)
Where there is no evidence on which a reasonable court acting
carefully might properly convict. See Attorney
General v Mzizi
1991
(2) ZLR 321.
(c)
Where the evidence led by the State is manifestly unreliable that no
reasonable court could safely act on it. See Attorney
General v Tarwirei
1997
(1) ZLR 575 (S).
The
second respondent properly applied these principles in discharging
the first respondent at the close of the State case. There is no need
for the court to summarise the evidence in detail for purposes of
this application but I will simply highlight what informed the second
respondent's well-reasoned judgment.
Etwen
Mhlanga, the manager of Barclays Bank, properly conceded that he was
an irrelevant witness. This is so on account of the facts that in
Count 1 it is alleged that the Z$3.5 million was paid by cheque but
the bank statements the State seeks to rely upon relates to a cash
deposit.
Mambo
Nyeperai, the accountant with Manase and Manase, conceded that the
proper person the State should have called to support allegations
made is Mr Manase
himself. He nonetheless confirmed the procedure, as explained by the
first respondent, of how law firms account for rejected or
unpresented cheques. It is clear his evidence supports the first
respondent's version rather that the applicant's version.
Stephen
Matongo, the buyer of the said Stand, did not support, materially,
the allegations made against the first respondent. He confirmed
buying the Stand from the seller, Everson Shephered Dandadza, for
Z$4 billion through an estate agent, Richard Ellis. He confirmed the
subsequent agreement to top up the selling price of Z$4 billion by
Z$195 million in 2007 due to inflation and that this agreement
involved the seller, Everson Shephered Dandadza, and his lawyer, the
first respondent, on one hand, and, on the other hand, himself and
his lawyer, Mr Manase.
He made the payments to the first respondent's law firm of the top
up price adjustment on dates he could not recall.
Stephen
Matongo was clear that the key witness in this matter, Everson
Shephered Dandadza, was an unreliable witness and explained why.
Stephen said the evidence of Everson is tainted by the fact he made a
double sale of the Stand. He insisted that contrary to Everson's
evidence he had paid for the Stand in full and that Everson was
greedy and chasing after inflation.
The
evidence of the key witness, Everson Shephered Dandadza, does not
only fail to prove the essential elements of the offences charged but
is manifestly unreliable and contradictory that no reasonable court
acting carefully might properly convict. It is clearly unsafe to act
upon such evidence. I will simply highlight the evidence which
support these findings.
Everson
Shephered Dandadza was unable to explain as to when exactly the
payment of Z$3.5 million was made as he constantly changed the dates.
Initially, he said it was on 23 December 2006 but when it was
confirmed that date fell on a Saturday he changed to 18 December
2006, but, still the receipt book showed no payments were made on 18
December 2006. In fact, the evidence available is that the cheque of
Z$3.5 million was received from Everson on 16 March 2007 as per the
receipt issued. This does not support the material allegation that
the first respondent received and converted the Z$3.5 million on 23
December 2006 which are two essential elements of the offence in
Count 1.
An
overview of Everson Shephered Dandadza's evidence is that he was
simply unreliable. He was unable to explain simple issues like when
the Z$3.5 million was paid and receipted. He was unable to produce
the cheque leaf from the said Z$3.5 million. He was even prepared to
disown his affidavit made and relied upon in the proceedings before
my brother MUSAKWA J. He even insisted that he was not paid in full
for the Stand despite Stephen Matongo's evidence and the finding by
my brother, MUSAKWA J, that he had been fully paid and should pass
transfer. It is clear that Everson's evidence is tainted by the
fact that he was chasing after inflation.
In
relation to Count 1, the trial court properly made the following
findings:
(i)
That the evidence led did not show if the payment of Z$3.5 million
was by cash or cheque.
(ii)
That the evidence led by the State did not establish whether the
payment was made on 23 December 2006 or after Christmas in 2006 or as
per the receipt produced on 16 March 2007.
(iii)
That evidence led by the State was contradictory as to whether
Everson Shephered Dandadza was not issued with a receipt, as per his
statement to the police, or was issued with such a receipt, as per
his evidence in court.
(iv)
That it has not been shown that the amount of Z$3.5 million has not
been properly accounted for in accordance with the best accounting
practice.
In
relation to Count 2, it is not in issue that after receiving the
Z$195 million (Z$160 + Z$35) from the buyer, Stephen Matongo, the
first respondent advised the seller, Everson Shephered Dandadza, but,
Everson refused to accept the money. It was also shown that the first
respondent thereafter made out a cheque of the same amount to Manase
and Manase, the lawyers for Stephen Matongo, who too refused to
accept the amount. It was placed before the trial court that as per
S.I.109 of 2008, dated 30 August 2008, all amounts outstanding in
Count 1 and Count 2 were rendered worthless. The evidence led shows
that the amount of Z$195 million was accounted for until it was
rendered valueless due to moribund currency and inflation which left
nothing for the first respondent to convert to his own use.
It
was clear that counsel for the applicant was constrained in making
submissions on the merits of the application. He conceded that he
could not meaningfully challenge all the exhibits or documents
produced during the State case by consent. Counsel for the applicant
exhibited understandable inhibitions in making his case on the
merits. Put simply, he was not able to attack the judgment of the
court a
quo.
I
find no misdirection at all, either on the facts or the law, by the
second respondent. The facts in both Count 1 and Count 2 are largely
common cause. All the exhibits which are in documentary form were
produced by consent and remained uncontroverted and the trial court
properly relied on the exhibits in assessing the State case. The
second respondent did not consider extrinsic factors hence his
decision cannot be said to be pervasive.
I
am not satisfied that the applicant has established that the intended
appeal enjoys reasonable prospects of success. To accede to the
applicant's request would simply amount to massaging the
applicant's ego. There is need for finality in litigation and I am
unable to exercise my discretion in favour of the applicant by
granting leave to appeal. It is not reasonable and not in the
interests of justice to do so. The application for leave to appeal
lacks merit and should fail.
Accordingly,
it is ordered that;
1.
The application for leave to appeal be and is hereby dismissed.
2.
There is no order as to costs.
