Before:
MALABA CJ, In Chambers
AN
APPLICATION FOR AN ORDER FOR LEAVE TO APPEAL TO THE CONSTITUTIONAL
COURT
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. 61/2016 (“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, 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 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 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 cellphone 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 Act.
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”.
He
also contended that the court a quo's finding on the authenticity
of the warrant of liberation infringed his right to be presumed
innocent until proven guilty. This finding by the court a quo was
also alleged to be a violation of section 165(1) of the Constitution,
which guarantees that justice must be done to all irrespective of
status.
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 Rules must allow
a person, when it is in the interests of justice and with or without
leave of the Court, to appeal directly to the 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.” (the underlining is for emphasis)
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 CCZ 11/18 is instructive with regards to the
specialised jurisdiction of the 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 CCZ 5/19 the Court noted that the purpose of
the right of appeal granted to a person under Rule 32(2) of the
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 Rules is to ensure proper exercise of jurisdiction by
the Court.
The
matter that gives rise to the need for the Court to exercise its
jurisdiction must be a constitutional matter decided by the
subordinate court.
In
Sadziwani v Natpak and Ors CCZ 15/19 the Court emphasised the need
for protecting its jurisdiction and process from abuse. It stated the
following at pp 18-19 of the cyclostyled judgment:
“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 realised 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 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 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 at paras 46-49 of
the cyclostyled judgment in Tungamirai Nyengera v The State SC-67/18:
“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 CPEA, 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 at para 15(a):
“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 Code. It is also common cause
that the Code 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 Code.
Section 18(1) 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 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 Court is not triggered in the circumstances.
In
De Lacy and Anor v South African Post Office [2011] ZACC 17 at paras
27-28, 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 dissatisfaction with factual findings. The Post Office opposed
the application. On 9 July 2009, this Court dismissed it for lack of
prospects of success.” (the underlining is for emphasis)
See
also Chiite and Ors v The Trustees of the Leonard Cheshire Homes
Zimbabwe Central Trust CCZ 10/17.
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 CCZ24/17 GWAUNZA JCC (as she then
was), at p 10 of the cyclostyled judgment, 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] reaffirms 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
the Lytton Investments (Pvt) Ltd case supra, the 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 p 22 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.
GARWE AJCC: I agree
HLATSHWAYO AJCC: I agree
National
Prosecuting Authority, respondent's legal practitioners
