IN
CHAMBERS
UCHENA
JA: This
is an application for extension of time within which to apply for
leave to appeal. After hearing submissions from both parties I
reserved judgment.
FACTUAL
BACKGROUND
The
applicant is the former Minister of Energy and Power Development. He
amongst other things supervised Zimbabwe Power Company (ZPC). On 14
January 2016, the applicant authored a letter in terms of which he
directed ZPC to work with an entity known as Fruitful Communications
(fronted by Oscar
Pambuka & Psychology Mazivisa)
until 2018. The engagement was for publicity work relating to the
Zimbabwe Agenda for Sustainable Socio-Economic Transformation
(Zimasset) programmes.
It
is common cause that the letter did not state whether or not there
was any payment to be made in respect of services rendered. However,
Fruitful Communications approached ZPC with that letter claiming to
have been chosen to do the publicity campaign and then invoiced ZPC
for the work it alleged to have done.
Subsequently,
the applicant was charged with criminal abuse of duty by a public
officer in terms of section 174(1)(a) of the Criminal Law
(Codification & Reform) Act [Chapter
9:23]
(“the Act”). His directive was deemed unlawful and contrary to
his duties as a public officer as it favoured Fruitful
Communications, enabling it to bypass the mandatory internal tender
procedures to be followed by any procuring entity.
The
applicant pleaded not guilty to the charge.
He denied directing ZPC to improperly engage Fruitful Communications
without following tender procedures.
The
applicant stated that the letter did not bar ZPC from engaging with
other media companies. He indicated that the work to be done by
Fruitful Communications was for free as it did not involve the
expenditure of public funds, thus it did not require tender approval.
He submitted that Oscar Pambuka & Psychology Mazivisa had
done free work for the Ministry before and it is in that context that
the letter was drawn.
The
applicant further submitted that if the issue for payment arose,
ZPC's accounting officer ought to have followed the required
procedures.
He
contended that Fruitful Communications and its counterparts were the
ones who intended to defraud ZPC.
As
such, he stated that the charges against him were influenced by a
political agenda targeted at perceived political opponents. He also
stated that he did not benefit from the letter.
After
trial proceedings before a Regional Magistrate, the applicant was
found guilty as charged. The court opined that the determinant factor
was that the applicant accepted to have authored the letter. It
further held that the letter, taken in its context, was an order
meant to govern the operations of ZPC.
In
the result, the court sentenced the applicant to four years
imprisonment, of which eighteen months were suspended on condition
the applicant does not within that period commit any offence
involving corruption.
Aggrieved
by that decision, the applicant noted an appeal to the High Court
against his conviction and sentence.
The
appeal was dismissed in its entirety. The court a
quo
held that the trial court properly found that the applicant was not a
victim of political machinations as the conduct giving rise to the
charge occurred in 2016, before the change of government.
Whilst
acknowledging that there was no code of conduct in place envisaged by
s106(3) of the Constitution governing the conduct of Ministers, the
court held that that fact did not absolve the applicant from wrong
doing.
The
court a
quo
referred to s9 of the Constitution and reasoned that the applicant,
as a state agent had the obligation to foster good governance and to
take measures to expose, combat and eradicate all forms of corruption
and abuse of power.
It
opined that the applicant's directive curtailed ZPC's power to
enlist the services of other service providers or invite formal bids
as is required by law.
The
court also found the custodial sentence imposed by the trial court to
be appropriate as the crime committed is serious because it
undermines public administration and subverts corporate governance.
Aggrieved
by the decision of the court a
quo,
the applicant filed a composite application for leave to appeal and
bail pending appeal in the court a
quo.
In
dismissing the application, the court held that the appeal against
conviction and sentence had no prospects of success. It held that the
letter, which the applicant wrote, directed ZPC to engage Fruitful
Communications for a specific period. It reasoned that had the work
been for free, the letter ought to have spelt out that the engagement
would be for free as alleged by the applicant.
Dissatisfied
by the court a
quo's
refusal to grant it leave to appeal, the applicant sought leave to
appeal to this Court against his conviction and sentence.
The
application was struck off the roll because it was premised on the
High Court Act instead of the Rules of this Court. The applicant
states that, that was an oversight by his legal practitioners. He
then mounted the present application for extension of time within
which to apply for leave to appeal to this Court.
He
argues that he has high prospects of success as his conviction was
wrong and that the sentence imposed by the trial court was
unprecedented.
The
applicant further contends that the letter of 14 January 2016 was
taken out of context in that things he did not say were read into it.
He further argues that he was convicted on dereliction of duties
which were not spelt out.
The
respondent opposed the application and averred that the court a
quo's
findings in respect of the applicant's conviction cannot be
assailed. The respondent states that the applicant's conduct of
giving directives to his subordinates to work with Fruitful
Communications till 2018 without following tender procedures
constituted criminal abuse of office. It avers that the applicant's
act of signing the letter is evidence that he agreed and associated
himself with the contents thereof and thus, showed favour to Fruitful
Communications.
The
respondent also contends that the court a
quo
properly exercised its sentencing discretion in that the sentence
imposed does not induce a sense of shock or outrage.
This
application raises two issues for determination:
1.
Whether or not the delay was inordinate?
2.
Whether or not the applicant has prospects of success on appeal?
THE
LAW
The
timelines
governing the present application are provided for by r20 of the
Rules which provides as follows:
“Applications
for leave to appeal
20(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.”
In
Chikurunhe
and Ors v Zimbabwe Financial Holdings
SC10/08
at p5,
the
court held that for
leave to appeal to be granted, one must show that he or she has
prospects of success on appeal. That is the overriding consideration.
SUBMISSIONS
MADE BY THE PARTIES
Mr
Muchadehama
for the applicant, submitted that the applicant was convicted and
sentenced on 20 July 2018. Aggrieved by both conviction and sentence,
he appealed to the court a
quo
which
dismissed his appeal in its entirety on 8 June 2020.
He
further submitted that on 11 June 2020, the applicant made an
application to the court a
quo
for leave to appeal to the Supreme Court which was dismissed.
He
averred that the applicant subsequently applied for leave to appeal
at the Supreme Court on 28 July 2020 and the application was struck
off the roll for being fatally defective as it was made in terms of
the High Court Act instead of the Supreme Court Rules, 2018.
Mr
Muchadehama
submitted that on 9 October 2020, the applicant applied for an
extension of time within which to apply for leave to appeal to this
Court. He avers that the delay was not inordinate as it was
predicated on his oversight which he immediately rectified by
mounting the present application based on the correct Rule.
Mr
Muchadehama
submitted that the
sentence imposed by the trial court and upheld by the court a
quo
is shocking and insensitive considering that the applicant only
signed the administrative letter which was abused by others to
swindle ZPC.
He
also avers that the applicant did not benefit in any way from the
transaction.
As
such, he states that the circumstances warranted the imposition of a
fine or other lesser punishments other than a custodial sentence.
Mr
Makoto
for the respondent conceded during the hearing of the application,
that the delay in applying for extension of time within which to
apply for leave to appeal was not inordinate.
He
further conceded that the question of sentence needs guidance from
this Court as this Court last pronounced itself on sentences for
corruption in the case of S
v Chogugudza
1996 (1) ZLR 28 (S) more than 20 years ago.
APPLICATION
OF THE LAW TO THE FACTS
1.
Whether or not the delay was inordinate?
Taking
into consideration the parties' agreement that the delay was not
inordinate, the overriding consideration in an application of this
nature is whether or not the applicant has prospects of success on
appeal.
The
concession by counsel for the respondent is, therefore, noted and I
find that the delay was not inordinate.
2.
Whether or not the applicant has prospects of success on appeal?
The
prospects of success in this application are based on the propriety
of the applicant's conviction and sentence.
Counsel
for the applicant averred that the applicant has prospects of success
on appeal against conviction and sentence. The gist of the
applicant's submissions is that his conviction is improper as the
court a
quo
failed to spell out his duties or to show how he had acted contrary
to them.
He
further stated that the court a
quo
read
duties into s174(1) of the Act which were non-existent.
Professor
G Feltoe in his book A
Guide to the Zimbabwean Criminal Law,
3rd
Ed Legal Resources Foundation, 2004,
sets out the elements of criminal abuse of duty by a public officer
as follows:
“Ingredients
[s174(1)]
A
public officer, in the exercise of his or her functions as such,
intentionally
-
does
anything that is contrary to or inconsistent with his or her duty as
a public officer;
or omits to do anything which it is his or her duty as a public
officer to do for
the purpose of showing favour or disfavour to any person.”
(emphasis added)
From
these elements, it can be noted that the crime is centred on a public
officer's exercise of duties.
If
a public officer acts contrary to his duties in order to show favour
or disfavour to any person, he would have abused his office for
purposes of s174(1) of the Code.
The
only exception is where favour
or disfavour is made in furtherance of a government policy aimed at
the advancement of persons historically disadvantaged by
discriminatory laws or practices. See s174(3)
of the Code.
The
word “intentionally” means that the conduct
constituting abuse must be deliberate, calculated or purposeful and
'abuse' connotes misuse, exploitation, taking advantage and
recklessness in that conduct. (See The
State v Taranhike & Ors
HH 222/18).
In
casu,
the charge put to the applicant was based on the fact that the letter
he wrote to ZPC which favoured Fruitful Communications, was contrary
to his duties as it by passed the tender procedures laid down by the
law.
In
convicting the applicant, the trial court gave credence to the fact
that the applicant accepted authorship of that letter.
In
upholding the trial court's ruling, the court a
quo
whilst acknowledging that there was no code of conduct stipulating
Minister's duties, opined that the appellant, as a state agent had
to foster good governance in terms of s9 of the Constitution. It also
held that the oath of affirmation into office was reflective of that
public duty.
It
is my view that the reasoning of the court a
quo
cannot be faulted.
The
applicant, as a public official in charge of a whole ministry, could
not rubber-stamp or endorse everything that came before him as he
alleges to have been done in respect of the letter that he alleged
was written for him to only sign.
Such
an office comes with a high level of responsibility and demands the
exercise of due diligence.
To
that end, the court a
quo
justifiably held that the letter was not taken out of context. The
applicant signed a letter which caused the breach of tender
procedures and cannot hide behind flimsy excuses. He is a
sophisticated person who understood the content and consequences of
the letter he signed.
The
findings of the court a
quo
cannot be faulted in this regard as they are reasonable and in sync
with the evidence on record.
It
has not been established that the court of appeal will have any basis
for interfering with the court a
quo's
decision on conviction. See
Barros
& Anor v Chimponda
1991
(1) ZLR 58 (S).
It
cannot, therefore, be said that the applicant has prospects of
success on appeal against conviction.
In
respect of the appropriateness of the sentence imposed, the
respondent's counsel conceded that there is need for the Supreme
Court to give guidance on sentences for corruption as the last case
was considered more than 20 years ago.
He,
therefore, agreed that there is need for this case to be considered
by the Supreme Court on the appropriateness of the sentence imposed
by the trial court and upheld by the court a
quo.
The
concession by the respondent's counsel justifies giving the
appellant a chance to apply for leave to appeal against sentence.
In
view of the respondent's concessions each party shall bear its own
costs.
In
the result it is ordered as follows:
1.
The applicant's application for extension of time within which to
apply for leave to appeal against sentence is granted.
2.
The applicant shall file his application for leave to appeal against
sentence within 5 days of the date of this order.
3.
Each party shall bear its own costs.
Mbidzo,
Muchadehama & Makoni Legal Practitioners,
applicant's legal practitioners
Attorney-General's
Office,
respondent's
legal practitioners
