Jurisdiction re: Approach, Assumption of Jurisdiction, Functus Officio and Judicial Deference

HB24-14 : THE STATE vs DERRECK ZUVA
Ruled By: MUTEMA J

The conduct by the trial Provincial Magistrate in the instant case is one sui generis.

She convicted the accused person on the 8th of May 2013 of contravening section 186(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], viz threatening to kill his father.

This was following a plea of guilty.

She sentenced the accused to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition of good behaviour while the balance of 18 months was suspended on condition the accused completed 630 hours of community service at Chikwingwizha Seminary School.

I raised a query with the trial magistrate whether she ever bothered to acquaint herself with the maximum period of imprisonment for the offence in question.

The response I got reads as follows:

“My sincere apologies for the anomaly and I undertake in future to regard this as unacceptable and therefore not to repeat it. I have however rectified the anomaly and may corrective measures be taken to rectify the anomaly. The correct sentence should not exceed 6 months or fine not exceeding level 5.”

I was, naturally, constrained to write back to the trial magistrate to reverse what she had done as I was disabled from further reviewing the matter. I wrote to her as follows:

“…,. The trial magistrate's conduct in casu is fraught with serious irregularities bordering on misconduct. As things stand, I can no longer recall off hand what sentence was imposed in the first place since the trial magistrate, in her perceived wisdom, has arrogated to herself review powers and altered her offending sentence to conform with the statutory limit. In so doing, she has removed the annexure B on which the wrong sentence was written as well as the initial review case cover and substituted both with new ones written the corrected sentence.

This is wholly unprecedented and unacceptable.

It is only a High Court Judge who is imbued with review powers to alter/correct a sentence by an inferior tribunal. A trial magistrate is not clothed with such powers.

As things stand, I am unable to carry out the review process to its logical conclusion. In order to do that, the trial magistrate is directed to bind back the erroneous pages that she removed and re-submit the record of proceedings to this court.”

She so did with this covering minute:

“…,. I sincerely apologise for the misdirection and I have attached the annexure B that had been removed and resubmitted the record for review. I undertake in future not to repeat this anomaly. Grateful for your guidance.”

The original review case cover was written the sentence of 24 months imprisonment of which 6 months was suspended for 5 years on condition of good behaviour while the balance of 18 months was suspended on condition the accused completed 630 hours of community service.

Annexure B, the placement of the offender on community service, also bore the same sentence.

The date on both documents was 9 May 2013.

Following my initial query, on checking the statute and realizing that she had overshot the maximum sentence permissible, the trial magistrate had then plucked out the two documents alluded to supra and substituted them with two respective ones bearing the sentence of 6 months imprisonment wholly suspended on condition the accused completed 210 hours of community service at the same institute commencing at the same date of 9 May 2013 but the new date stamp was the date of amendment of the sentence, viz 04 September 2013.

Originally, the community service was stipulated to be completed within 18 weeks; but, in the amended sentence, it was scheduled to be completed within 6 weeks.

But, by the 4th of September 2013, when the sentence was self-amended, the accused had gone 15 and a half weeks with the community service.

The record is silent on whether the trial magistrate advised both the accused and the relevant institution, not to mention the prosecution, about this new sentence of hers.

By now, the accused has already finished both sets of sentences in terms of performing the community service.

The prejudice wrought to him cannot now be undone, all because of a trial Provincial Magistrate, a fairly senior grade in the magisterial hierarchy, who shockingly purported not to know that a review query is not a licence to correct her mistake(s) but to simply respond to it as requested so that corrective measures, if any, could be taken by the reviewing authority.

I am constrained, once again, to advert to the exhortation Judges have often sounded to trial magistrates to please apply their mind to their work meticulously and with the utmost of diligence. Whilst it is acknowledged, that, erring is an accepted and inevitable human shortcoming - in discharging judicial work, it must be the exception instead of the norm.

A bad decision can have far reaching and debilitating consequences to another human being's life, liberty, or general affairs.

We cannot, as judicial officers, afford to discharge judicial duties on the premise of work as usual. To adopt that mentality would mean that we are in the wrong profession.

It behoves me to only declare that these proceedings are a far cry from being categorized as being in accordance with real and substantial justice. Accordingly, I withhold my certificate.

The Registrar of this court is directed to bring the Chief Magistrate's attention to these proceedings.

CCC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

This is an urgent application for an order staying certain unterminated criminal proceedings against the applicants.

The proceedings are underway before the first respondent, a Regional Magistrate.

The applicants seek to stay the proceedings pending determination of two applications that they filed with this Court for direct access.

If successful in the applications for direct access, the applicants intend to file an application in terms of section 85(1) of the Constitution, allegedly for the enforcement of their fundamental rights and/or freedoms.

Background

As stated above, the applicants are jointly appearing before the first respondent. They stand accused of publishing or communicating false statements that are prejudicial to the State in contravention of section 31(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. The charge has two other alternatives whose particulars are not material in the determination of this application.

At the commencement of their trial, the applicants requested that certain constitutional questions be referred to this Court in terms of section 175(4) of the Constitution.

The request was dismissed and the trial of the matter commenced.

In dismissing the request, the first respondent formed the view, that, the request was not bona fide but was generally marked by a lack of seriousness.

Dissatisfied with the refusal of their request, the applicants filed two applications to this Court seeking the leave of the court to approach it directly. In these applications, filed on 12 April 2022, the applicants contend, in the main, that, the refusal of their request by the first respondent to refer the matter to this Court violates their rights to protection of the law.

Arguing that they have no alternative remedy to approaching this Court directly, the applicants further contend, that, it is in the interests of justice that this Court considers the questions that they had requested the first respondent to refer to this Court.

In the request for referral, the applicants had raised the constitutionality of section 31(a)(i) and (iii) of the Criminal Law (Codification and Reform) Act [Chapter 9.23], under which they are being charged and tried.

They also sought to challenge the admissibility, as evidence against them, of the statements that they had given to the police at some stage during the investigation of the matter. They alleged that such statements were forcefully extracted from them.

They further contended, that, their trial has received wide adverse media coverage which has compromised their rights to a fair trial.

On 26 April 2022, the applicants filed this urgent application in which, as stated above, they seek an order staying the criminal proceedings against them before the first respondent, pending determination of the applications for direct access.

The applicants have not simultaneously with, or alternatively to the urgent application before me, filed an application seeking directions that the applications for direct access be heard urgently or that such be summarily disposed of in terms of Rule 21 of the Constitutional Court Rules.

They appear content to simply apply for a stay of the ongoing proceedings before the first respondent pending determination of their applications for direct access.

This manner of proceeding has, and deservedly so, given rise to the perception and argument by the second respondent, that, the applicants are merely bent on delaying the finalisation of the criminal trial that is before the first respondent.

The urgent application was opposed by the second respondent.

As a preliminary point, the respondent argued, that, an application to postpone the hearing of the matter could have been made before the trial court under sections 165 and 166 of the Criminal Procedure and Evidence Act [Chapter 9.07].

Regarding the merits of the application, the second respondent argued, that, the inherent jurisdiction conferred upon this Court, to regulate its own processes, does not entail a power to regulate the criminal proceedings before the first respondent.

In the final analysis, the respondent argued that the matter is not urgent.

At the hearing of the application, I requested the parties to address me on whether this Court has jurisdiction to grant the relief that the applicants are seeking.

This was so because, in my view, the preliminary issue that falls for determination in this application is whether this Court, before it determines the applications for direct access, has the requisite jurisdiction to interfere with the unterminated proceedings before the first respondent.

The Law

In a long line of cases from this jurisdiction and elsewhere, the admonition is repeatedly sounded and explained, that superior courts should be very slow in interfering with the unterminated proceedings of lower courts.

The exception is made for cases where there is a gross irregularity or a wrong decision by the lower court that will seriously prejudice the rights of a litigant or accused person and which irregularity or wrong decision cannot be corrected by any other means: see Attorney-General v Makamba 2005 (2) ZLR 54 (S); Rasher v Minister of Justice 1930 TPD 810; Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357; Walhaus v Additional Magistrate, Johanesburg & Anor 1959 (3) SA 113 (A); Masedza & Others v Magistrate, Rusape and Others 1998 (1) ZLR 36 (H); Mantzaris v University of Durban-Westville & Others (2000) 10 BLLR 1203 LC; Rose v S HH71-02; Mutumwa and Anor v S HH104-08; Chikusvu v Magistrate Mahwe HH100-15; Chawira and Others v Minister, Justice, Legal and Parliamentary Affairs and Ors CC03-17 and Shava v Magomere HB100-17.

The above admonition is sounded to a superior court that has inherent or legislatively-conferred review powers over the proceedings or decisions of the lower court.

It is meant to guide the approach to be taken by such a court.

This is so because the power to interfere with the unterminated proceedings of a lower court either permanently, or as affording interlocutory relief, is nothing but an exercise of review jurisdiction by the superior court over the proceedings or decisions of the lower court.

The authorities clearly establish the position at law, that, proceedings in a lower court or its decision are only interfered with if there is a gross irregularity in the proceedings or the interlocutory decision is clearly wrong.

Both instances, respectively, encompass the common law review grounds of gross irregularity in the proceedings and/or gross unreasonableness in the decision.

By established practice of the courts, it is thus accepted, that, the existence of these two grounds of review may, in appropriate circumstances, justify a superior court of competent jurisdiction interfering with the ongoing proceedings of a lower court.

This Court decides only constitutional matters and issues connected with decisions on constitutional matters. It is not a court of inherent jurisdiction and thus lacks inherent review powers over lower courts.

The Court, however, has legislatively-conferred review powers. These are set out in section 19 of the Constitutional Court Act [Chapter 7.22].

Whilst fairly wide, the review powers of this Court are, correspondingly and in conformity with the Constitution, limited in scope to constitutional matters only.

Section 19 of the Constitutional Court Act thus provides:

“19 Review Powers

(1) Subject to this section, the court and every Judge shall have, in constitutional matters, the power to review the proceedings and decisions of the Supreme Court, the High Court, and all other subordinate courts, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subs (1) may be exercised whenever it comes to the notice of the court or a Judge that an irregularity has occurred in any proceedings or in the making of any decision, notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the court or a Judge, and provision may be made in rules of court, and a Judge may give directions, specifying that any class of review or any particular review shall be instituted before, or shall be referred or remitted to the Supreme Court, the High Court or the Labour Court, as the case may be, for determination.”…,.

If it is accepted, which it must, that, this Court lacks inherent jurisdiction to review the proceedings and decisions of lower courts in non-constitutional matters, it stands to reason, that, this Court must be dead slow in interfering with the unterminated proceedings of any lower court and proceed only after it is satisfied that there is a constitutional matter arising in the matter.

Put differently, the review jurisdiction of this Court is only triggered and engaged after this Court has satisfied itself that the matter involved is a constitutional matter.

I venture to suggest, that, where the matter is intended to be brought before this Court, as a court of first instance, as in casu, this Court must only proceed to interfere with the unterminated proceedings of a lower court where it intends, in the interests of justice, to grant direct access in the matter and determine the matter itself.

Put differently, this Court must only interfere with un-terminated proceedings in the lower courts where it has jurisdiction in the matter.

If it were to proceed in any other manner, this Court would run the risk of rushing in and interfering with unterminated proceedings in a lower court, that, on final analysis, turn out to have been on a non-constitutional matter.

In such an instance, the interference by this Court would lack legitimacy as having been made in breach of the Constitution that confines the jurisdiction of this Court only to constitutional matters and decisions in issues involving a constitutional matter.

Analysis

In this application, it is common cause, that, the applicants have filed two applications for direct access. The applications are yet to be determined. This, in turn, means that this Court has not yet determined that the two applications raise constitutional matters that will engage its jurisdiction.

The submission was made by counsel for the applicants, that, the urgent application before me seeks to protect the integrity of whatever decision this Court will make in the applications for direct access.

It was thus submitted, that, on that basis alone, this Court has the jurisdiction to stay the proceedings in the magistrates courts.

I am unable to agree.

The submission would have been cogent and dispositive if the two applications pending before the Constitutional Court were on constitutional matters.

They are not.

An application for leave to access the court directly, as its name suggests, is an indulgence craved for a constitutional matter to be placed before the court directly. It prepares and paves the way for the filing of a constitutional matter proper.

Whilst it is an issue in connection with a constitutional matter, in terms of section 167(1)(b) of the Constitution, it is itself not the constitutional matter.

This is so because its determination does not entail the interpretation or protection of the Constitution. Its determination is an exercise of the court's discretion, in the interests of justice, to establish whether the court's jurisdiction is triggered and engaged in accordance with the law and established practice.

Further, the determination of an application for direct access by this Court is not, in my view, an exercise of the inherent power of this Court to protect and regulate its own processes as submitted by counsel for the second respondent.

The determination of such an application serves to confirm or deny the presence of a constitutional matter, which, in the interests of justice, this Court must determine as a court of first and final instance.

Thus, it stands to reason, that, before an application for leave to access the court directly is granted, there is no constitutional matter before the court. Absent a constitutional matter before the court, its review jurisdiction, as contemplated in the application before me, cannot be triggered.

Counsel for the applicants drew my attention to the case of Moyo v Chacha and Others CC15-17.

In that matter, this court stayed the proceedings of the magistrates court pending determination of an application on a constitutional matter that had been filed before it.

In a somewhat terse ruling, the Court was persuaded, that, there were gross irregularities attendant upon the process that had been invoked against the applicant. In its own words:

“The papers before the court clearly reveal that there is a real possibility that due process was not complied with in the handling of this matter. In the light of that, the concession by the Prosecutor General is based on sound legal considerations in this matter.

Quite clearly, a definitive decision on whether or not there was failure of due process in the handling of this matter can only be determined by the Constitutional Court, as opposed to a Judge sitting in Chambers. It is for the Constitutional Court, if it so finds that there were procedural failures of due process in this matter, to decide what remedies are available to the applicant.”

I however find the above case to be of marginal relevance to the application before me.

The facts of the application before me are to be distinguished from the facts in Moyo v Chacha and Others CC15-17. As stated above, in that case, the substantive constitutional application was pending before this Court, unlike in casu.

It therefore presents itself clearly to me, that, an application for leave to access this court directly is precisely what its name suggests. It seeks leave to place the constitutional matter before the court. It is itself not the constitutional matter, and, until it is granted, the constitutional matter is not before the Court and the review jurisdiction of this Court is neither triggered nor engaged.

The mere filing of an application for leave to access this Court directly is insufficient to confer jurisdiction upon this Court to interfere with the unterminated proceedings of the magistrates courts. It does not afford the applicants the proverbial foot in the door that they had hoped for.

It is therefore my finding, that, I do not have jurisdiction to interfere with the unterminated proceedings that are before the first respondent.

In view of this finding, I am unable to proceed any further, and, in particular, I am unable to determine the issues of urgency or the availability of alternative remedies to the applicants, points that the second respondent raised in opposition to the application.

Disposition

Regarding costs, there is no justification that I depart from the general position not to make an order as to costs in favour of any of the parties in an application of this nature.

In the result, I make the following order:

The application is dismissed with no order as to costs.

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

Regarding prospects of success, the practice has been to look for more than an arguable case.Prospects of success are established if, on appeal, this Court is likely to reverse the finding of the lower court or to materially change the order a quo....,.A prima facie case, or an interesting or ...

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

The Intended Appeal

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court.

The Law

The law that governs applications for leave to appeal to this Court is settled and appears in a line of cases that remain undisturbed since the adoption of the Constitution.

A judge or court determining such an application must be satisfied that the matter raised in the intended appeal is a constitutional matter that has been clearly and concisely set out. This is so because this Court, being a specialized court, only enjoys jurisdiction in constitutional matters.

Further, the judge or court must be satisfied, that, the constitutional matter enjoys prospects of success on appeal.

This, in turn, serves to reserve the jurisdiction of this Court only to deserving cases.

See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC); Muza v Saruchera CC05-19; Bonnview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Private) Limited & Ministry of Lands and Rural Resettlement CC06-19; Mbatha v National Foods CC06-21; and Konjana v Nduna CC09-21.

Applications for leave to appeal to this Court are made in terms of Rule 32 of the Constitutional Court Rules 2016.

I note, in passing, that, Rule 32 does not, as does its counterpart Rule 21(8), which deals with applications for direct access to this Court, set out the factors to be considered as being in the interests of justice.

Therefore, in assessing whether or not it is in the interests of justice to grant an application for leave to appeal, the practice of this Court has been guided by the past decisions of this Court as set out in the authorities referred to above.

Regarding prospects of success, the practice has been to look for more than an arguable case.

Prospects of success are established if, on appeal, this Court is likely to reverse the finding of the lower court or to materially change the order a quo.

Analysis

I find that the intended appeal will raise a constitutional matter.

This is the issue of the jurisdiction of the High Court in an application brought in terms of section 85(1) of the Constitution for the enforcement of a fundamental right or freedom during the pendency of other court proceedings.

Section 85(1) of the Constitution is the provision that confers the requisite constitutional jurisdiction on courts to enforce a fundamental right or freedom. Conversely, it is the provision that guarantees the right of all persons to access a court for the enforcement of fundamental rights and freedoms.

The issue of the jurisdiction of the High Court, in the circumstances of this matter, will entail an interpretation of the right of access to a court as provided for in section 85(1) of the Constitution and whether it is to be enjoyed in all circumstances, at all times, and without any impediment.

It is, without a doubt, a constitutional matter.

I draw confidence in my finding above from the fact, that, the determination of whether or not this Court had jurisdiction in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) was, unavoidably and correctly so, regarded by this Court as a constitutional matter.

That matter similarly involved an interpretation of section 85(1) of the Constitution.

Indeed, the facts in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), to a large extent, mirror the facts of the intended appeal.

In both instances, the applicants approached another court for the purported enforcement of their fundamental rights and freedoms during the pendency of other proceedings.

The applicant having cleared the first hurdle, I now turn to consider whether the issues raised in the intended appeal have any prospects of success....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant.

In the second ground of the intended appeal, the applicant contends that “the court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor…, to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the Magistrates Court.”

I cite in the contention the first ground of the intended appeal in full.

That the decision of the Supreme Court was squarely based on the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is not in dispute.

The ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), correctly understood, has a fairly broad and far-reaching impact on the right of persons to access a court in terms of section 85(1) of the Constitution for the enforcement of fundamental rights and freedoms in circumstances where section 175(4) of the Constitution can also, and should, consequently apply.

I understand the ratio decidendi of the case to lay down the legal proposition, unequivocally and without exception, that, any person who is appearing before any court and intending to raise and rely on any alleged violation of their fundamental rights or freedoms for any relief, must invoke the provisions of section 175(4) of the Constitution or forever lose their right to claim relief for such violations.

Put differently, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) holds, that, the right of any person to access a court, in terms of section 85(1) of the Constitution, if that person is already a party to proceedings before another court, is completely negated and the constitutional jurisdiction of all other courts is ousted.

I pause to note, that, this negation of the right to access other courts or the complete ouster of the jurisdiction of other courts, other than the court wherein the proceedings are underway, is not a mere rule of practice and procedure which, in the interests of justice, may be departed from.

It is an interpretation of the Constitution by this Court.

It therefore forms part of the body of the Constitutional Law of this jurisdiction on access to the courts to enforce a fundamental right or freedom.

In consequence of the above, the broad position of the law then becomes, that, where a person is already before a court in any proceedings, an approach to any other court, in terms of section 85(1) of the Constitution, for the enforcement of a fundamental right or freedom, outside the provisions of section 175(4) of the Constitution, is legally incompetent.

It begets a nullity for want of jurisdiction.

The other court so approached is stripped of its constitutional jurisdiction under section 85(1) by the availability of the procedure under section 175(4).

The above interpretation of the Constitution, by implication, rightly or wrongly, also supersedes and overrules the common law position that grants the High Court inherent jurisdiction over all persons and all matters.

It would appear that the legal position that I have outlined above, unduly restrictive on the right to access courts for the enforcement of fundamental rights and freedoms as it seems to be, is the position that obtained under the repealed Constitution.

It was the settled position under that Constitution, that, any constitutional issues arising in a lower court, during the course of any proceedings, had to be referred to this Court in terms of section 24(2) and could not be brought, pursuant to section 24(3), as a fresh cause of action under section 24(1): see Jesse v Attorney-General 1999 (1) ZLR 121 (S)…,.

Notwithstanding the adoption of the current Constitution, the position of the law remains unchanged.

Section 175(4) of the Constitution is the equivalent of section 24(2) of the repealed Constitution whilst section 85(1) is the current version of section 24(1), albeit improved.

That, the two provisions are located in different chapters of the Constitution detracts not from their effect and import as interpreted by this Court.

If I have correctly understood its ratio decidendi, then, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is authority for the simple proposition, that, where any person is before any court on any non-constitutional matter, but intends to seek redress for the alleged breach of his or her fundamental rights and/or freedoms arising in connection with that matter, he or she must raise the alleged breach before that court and invoke the provisions of section 175(4) of the Constitution if he or she intends to have the matter determined by this Court.

The party may also petition that court directly for any appropriate relief.

The net effect of this position is, that, any purported approach to another court, in terms of section 85(1) of the Constitution, under the circumstances, is not only impermissible but is a nullity as the constitutional jurisdiction of all other courts, the High Court included, is not only arrested but is lost by operation of law.

The import of the decision in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is thus not only to render section 175(4) of the Constitution as regulating access to the Constitutional Court on issues arising during proceedings before any court, as argued by counsel for the applicant, but to render section 85(1) of the Constitution redundant and of no force and effect where proceedings involving the applicant are pending before a court.

On the basis of the above, I must reject the argument by counsel for the applicant, that, section 85(1) of the Constitution creates unimpeded access to the High Court.

It does not always do so.

It only does so where there are no pending proceedings before any other court to which the applicant is a party.

In casu, the applicant was appearing before the Magistrates Court where he correctly raised the allegations of the breach of his fundamental rights. By the mere fact that he was appearing before the Magistrate's Court where he was obliged to raise such allegations, the constitutional jurisdiction of all other courts, under section 85(1) of the Constitution, the High Court, and this Court included, was thereby extinguished and lost.

This is the import of the ratio in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) which the Supreme Court correctly applied.

The ratio of Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), however, does not extinguish the right of the applicant to access this Court under section 85(1) of the Constitution, alleging that a lower court has wrongfully refused a request for a referral made under section 175(4) of the Constitution.

The cause of action in that matter will be the refusal by the lower court to refer the matter to this Court and not the alleged violation of the fundamental rights or freedoms giving rise to the referral.

It is therefore my finding, that, the applicant enjoys no prospects of success on the second ground of the intended appeal. It is most unlikely that this Court will reverse the order of the Supreme Court and find, instead, that, the High Court enjoyed jurisdiction, inherent or otherwise, in the matter.

By parity of reasoning, the third ground of the intended appeal falls by the wayside.

The assumption of jurisdiction by the High Court, in the circumstances of this matter, was erroneous and grievously so. It begot nothing that can be salvaged. Once it is accepted that the High Court did not have any jurisdiction in the matter that concludes the inquiry. Its proceedings fall away automatically by operation of law.

There is thus no possibility, in the circumstances of this matter, that, this court will find, as contended by the applicant, that “the court a quo erred and misdirected itself in not finding that once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

Disposition

The applicant has no prospect of success on its main contention that the High Court had jurisdiction in the matter that was placed before it. Accordingly, his application for leave to appeal cannot succeed.

Regarding costs, I see no justification for making an award of costs in this matter.

In the result, I make the following order:

The application is dismissed with no order as to costs.

CCC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

In section 332 of the Constitution, a constitutional matter is defined as “a matter in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.”Accordingly, a constitutional matter arises where there is an issue in dispute raising questions of law, the resolution of which requires the ...

HMT59-19 : NOREST CHIGWADA vs THE STATE
Ruled By: MUZENDA J

On 19 July 2019, the applicant applied for bail pending appeal seeking the following relief:

“IT IS ORDERED THAT:

1. The bail pending appeal be and is hereby granted on the following conditions:

(i) Applicant deposits cash in the sum of RTGS$100 to the Clerk of Court, Rusape.

(ii) Report once to Glen View Police Station on the last Friday of each month until the determination of the Appeal.

(iii) The Applicant is to reside at 7252, 96th Crescent, Glen View Area 8, Harare, until the determination of the Appeal.”

The bail application appeal is opposed by the State.

BACKGROUND FACTS

On 11 June 2019, the applicant was arraigned at Rusape for rape as defined in section 65 of the of the Criminal Law (Codification and Reform) Act [Chapter 9:23] where the State alleged, that, on 8 September 2018, and at Tsikada Primary School Bus Stop, the applicant unlawfully had sexual intercourse with X, a female person without her consent knowingly or realising that there was a real risk or possibility that X may have not consented.

According to the State summary, the applicant is employed by Mwayera Buses as a conductor and the complainant, X, is aged 16 years and resides at Village 13A Chinhenga.

The applicant and the complainant are not related.

On 8 September 2018, at around 0800 hours, the complainant boarded one of Mwayera buses from Harare going to Chinhenga with the applicant as the conductor. The applicant then went to share the same seat with the complainant, and, on their way, the applicant proposed love to the complainant; complainant turned down the proposal stating that the applicant was married.

The bus reached Tsikada Bus Terminus where the complainant got off to relieve herself together with another woman unknown to the complainant.

After about two minutes, the applicant followed the complainant and ordered the woman to go back into the bus as he wanted to talk to the complainant.

The applicant then further asked the complainant to consider her response to his proposal.

The complainant remained with her rejection and that is when the applicant pushed the complainant against a sign post, pressed her against it denying her any movement, forcibly removed the complainant's pant from underneath her skirt, produced his erect penis, and had sexual intercourse once with the complainant without her consent.

During the act, the complainant screamed, but, no one heard her as there were some noise from the two buses which were at the terminus.

The complainant managed to push away the applicant and returned to the bus but did not disclose the matter to anyone.

The applicant returned to his seat in the bus and told the complainant that he was going to marry her if she fell pregnant.

On 10 September 2018, the complainant made a report to her school teacher, Mrs Dodzo, who then made a report to the Headmaster, then to the police.

The applicant was subsequently found guilty, after trial, and sentenced to 10 years imprisonment of which 3 years imprisonment was suspended for 5 years on the usual conditions of future good behaviour.

On 14 June 2019, he filed an appeal against conviction only.

Now, he is applying for bail pending that appeal.

APPLICATION

In his application for bail pending appeal, the applicant contends, that, he is a good candidate for bail because, according to him, there are good prospects of success against conviction.

There is a good likelihood of delay before the appeal could be heard and he is not going to abscond.

He adds, that, he has an arguable case on appeal because the Regional Magistrate failed to place due weight on the material inconsistencies in the complainant's evidence and highlighted the evidence he perceives the complainant faired poorly.

The applicant pointed out, that, the court should have mero motu ordered an inspection in loco and also further pursued the applicant's alibi, which was belatedly raised during cross-examination of the applicant by the State and not contained in the Defence Outline.

The applicant is unlikely to abscond in light of the strong prospects of success on appeal.

The applicant admits, that, the presumption of innocence is no longer operative after the conviction and sentence; however, there is no cognizance that the applicant will abscond.

The State, on the other hand, submitted, that, the onus is upon the applicant to satisfy the court that his admission to bail will not prejudice the administration of justice.

The applicant has no affidavit statement applying for bail pending appeal.

The State urged the court to conclude, that, there is no application before the court because of the failure to attach an affidavit signed by the applicant.

It went on further to contend, that, there are no prospects of success on appeal.

The grounds of appeal filed by the applicant lack specifics and clarity; it amounts to no appeal.

Due to the sentence passed on the applicant, if the applicant is granted bail is likely to default.

There is no delay in the appeal being heard since the record of proceedings is ready for setting down.

The State supported the medical report and dismissed the applicant's argument on the alleged inconsistencies of the complainant.

In the view of the State, the inspection in loco was not necessary.

On the issue of alibi, the State submitted, that, the applicant failed to raise the defence of alibi - he did not.

THE LAW

In S v Manyange 2003 (1) ZLR 21 at 218 MAKARAU J…, held that:

“In an application for bail pending appeal, as distinct from bail pending trial, the presumption of innocence is inoperative, and, for his application to succeed, an application must show that there are positive reasons why bail should be granted. It is not enough for the applicant to show that he has reasonable prospects of success on appeal, he must go further and establish that there are positive grounds for granting him bail pending appeal and that the granting of bail will not endanger the interests of justice. The onus is on him to tip the balance in his favour.”

At p21F, the Learned Judge further held:

“…, it was not enough for the applicant simply to point to some inadequacies in the State case; he had to show, that, in addition to his prospects of success on appeal, the interests of justice would not be endangered if he was granted bail.”

In S v Labuschagne 2003 (1) ZLR 644 GWAUNZA JA…, held on p644 D-F:

“…,. That the mere fact that leave to appeal has been granted does not, per se, entitle a convicted person to be allowed out on bail. The onus of establishing that justice will not be endangered and that there is a reasonable prospect of success is upon the applicant. It is improper to allow people convicted of serious crimes to be walking in the streets instead of serving their sentences when the prospects of success are non-existent. Society would lose faith in the system and revolt.

Further, that, on the evidence, the applicant had not proved that there were positive grounds for granting him bail pending appeal. He had not discharged the onus of establishing that justice would not be endangered and that there was a reasonable prospect of success.”

ANALYSIS

Counsel for the applicant struggled to attack the conviction of the applicant.

The judgment of the court a quo, and the response filed by the State, clearly shows that the prospects of success on appeal is a mountain for the applicant to climb.

The test, at this stage, is obviously that the applicant must have an arguable case on appeal; but, even for that, the applicant failed to prove that in his evidence and argument before the court.

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

This court, in particular, is a superior court with inherent and unlimited jurisdiction over all matters, civil or criminal save as excepted by the Constitution.

HH229-19 : INTRATREK ZIMBABWE (PVT) LTD and WICKNELL CHIVAYO vs PROSECUTOR GENERAL OF ZIMBABWE and L. NCUBE N.O.
Ruled By: TAGU J

This is an application for the review of the second respondent's ruling dismissing the applicants exception to criminal charges preferred against them in the court of the Provincial Magistrate at Harare under case number CRB P9114-5/2018. The ruling was handed down on the 19th of November 2018.The first applicant is ...

THE FACTS

The applicants were arraigned before the Magistrates Court sitting at Harare for contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] - Fraud (2 counts); contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with section 4.1.18 of the Foreign Exchange Guidelines to authorised dealers, ECDI of 2009; and contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with Exchange Control Authority GR1776 of 26 April 2016.

The allegations, as appearing on the outline of the State case, were that -

“…,.

4. On the 23rd of October 2015, Zimbabwe Power Company (ZPC) signed an Engineering, Procurement and Construction Contract (EPC) with accused (1) being represented by accused (2) for the construction of 100-Megawatt Solar Power Generation Plant in Gwanda. The performance/scope of the work was guided by schedule 11 of the contract.

5. Clause 2(a) and (b) of the terms and conditions of the contract under schedule 11 stated, that, the employer's advance for feasibility study and pre-commencement activities was to be considered part of the contract advance payment. A Bank guarantee was to be provided against all payments made by ZPC towards the project implementation.

6. Subsequently, between 4 December 2015 and 22 January 2016, the accused submitted two separate invoices amounting to US$803,765=82 and US$1,631,888=81 dated 9 November 2015 and 11 January 2016, respectively, on the pretext of feasibility study implementation.

ZPC'S Finance Director, Hubert Chiwara, acted upon the misrepresentation and released the full payment of US$2,435,654 in 9 different instalments, without the requisite bank guarantee, between 4 December 2015 and 22 January 2016 on the understanding that Shanghai Electric Power Design Institute Co. Ltd was going to carry out the feasibility study.

The payments were made from ZPC'S Stanbic Bank account numbers…, and Stanbic Bank…, into accused (1)'s CBZ bank account number…,.

7. However, ZPC Technical Director, Robson Chikuri, ZPC Projects Manager, Cleopas Fambi, and the suspended ZPC Managing Director, Noah Gwariro, indicated, that, they never met sub-contractor, Shanghai Electric Power Design Institute Co. Ltd during the alleged study period. There also no record of sub-contractor's representative entering Zimbabwe during the period in question.

8. Again, between 15 February 2016 and 25 April 2016, the accused submitted 3 invoices of US$1,219,476=80 each supported by payment release certificates; being advance payment claims, purportedly for the implementation of the following works -

(i) Site establishment (basic ablutions, communication network, temporary housing, preliminary foundation for 20-megawatt power plant and water citing and borehole drilling and storage).

(ii) Access roads.

(iii) Ground clearing.

9. Similarly, Hubert Chiwara acted upon the misrepresentation and released a total advance payment of US$3,188,476=80 on 12 different instalments, without bank guarantee, into the same bank account highlighted above.

10. On 26 April 2016, Hubert Chiwara requested the accused to provide a schedule of commitment in respect of funds released by ZPC towards the implementation of the project. The accused, again, through his Company Secretary, K. Makoni, misrepresented to the Finance Director, that, a total of US$1,960,125=40 had been paid to subcontractors. The sub-contractors distanced themselves from the invoices submitted by accused.

11. The paper trail indicated, that, accused used the funds meant for feasibility study and pre-commencement works for his own person benefit by diverting them into various individual and companies who were not involved in the intended activities for which the pre-funding was intended for. Investigations established, that, the funds were used to purchase vehicles; air tickets for the girls stranded in Kuwait; school fees; settlement of civil suits.

12. Further, the accused loaded a total of US$684,150 into five different VISA cards, purportedly for the importation of earthmoving equipment from Pietznack Plant and Earth Moving Service, a company resident in Dallas in the United States of America.

13. The accused person entered into a recurring fees agreement with Pietznacle Plant & Earth moving services company based in Dallas, United States of America for the importation of earth moving equipment without seeking prior approval from Exchange Control Authority, contrary to the provisions of the said Act.

14. In violation of the Exchange Control Act, the Accused persons did not clear, with Exchange Authority, through CDI forms, within 90 days as required by the said Act.

15. The offence came to light after the ZPC Board, through its Chairperson, Engineer Stanley Kazhanje, who discovered that the payments were made without bank guarantee and he reported the matter to the police, through his letter dated 18 December 2017, for investigations.

16. ZPC suffered a total prejudice of US$5,624,130=80 and nothing was recovered.”

Upon arraignment, the applicants pleaded and excepted to the charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] on the basis, that, the facts do not disclose an offence.

The exception was contested by the State.

On the 19th of November 2018, the court a quo dismissed the application for exception.

Dissatisfied with the court a quo's ruling dismissing the application for exception, the applicants approached this Honourable Court with the present application.

The applicants also filed an urgent chamber application for stay of criminal proceedings pending the determination of the present review application.

The urgent chamber application was filed under case number HC11205/18.

The urgent chamber application was partially dismissed on the merits, on 31 December 2018, under case number HH849-18, by MUSAKWA J, who ordered that the criminal trial had been suspended only in respect of the third Count.

Consequently, the applicants are currently undergoing trial in the Magistrates Court in respect of the other counts.

The application for review is opposed by the State.

THE LAW

The applicants have approached this Honourable Court in terms of section 26 as read with section 27 of the High Court Act [Chapter 7:06]. Part V of the High Court Act [Chapter 7:06] provides for powers of the High Court on review. Section 26 provides for the High Court's power to review proceedings and decisions of inferior courts. There are three grounds on which an application for review of criminal proceedings can be brought to the High Court in terms of section 27(1) of the High Court Act [Chapter 7:06]. These are -

(a) Absence of jurisdiction on the part of the court or authority concerned;

(b) Interest in the cause, bias, or malice on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be; and

(c) Gross irregularity in the proceedings or decision.

In casu, the applicants raise one major ground of review. It is captured on record p1 as -

“The second respondent's decision is grossly unreasonable and patently contrary to law such that no reasonable judicial officer who had applied his mind to the facts would have reached the same decision.”

The parties agree on the law applicable in an application of this nature.

RELIEF SOUGHT

The remedy that the applicants seek is that -

“1. The second respondent's ruling, of 19 November 2018, in case number CRB P9114-5/18 be and is hereby set aside.

2. The following is substituted in its place:

'In the result, the exception succeeds. The charges be and are hereby quashed. Consequent to the accused's plea, both accused be and are hereby acquitted.'”...,.

MY ANALYSIS OF THE FACTS IN THE OUTLINE OF STATE CASE

In reviewing the decision of the court a quo, and having found that the court a quo did not deal with the actual basis of the exception, the court is now at large to decide whether the facts disclose or support the criminal offences/charges the applicants are facing or not.

The starting points are paragraphs 4 and 5 of the Outline of the State Case which contain the full facts pertaining to the charges the applicants are facing. They read as follows -

“4. On 23 October 2015, ZPC signed an Engineering, Procurement and Construction Contract (EPC) with accused (1) being represented by accused (2) for the construction of 100-Megawatt Solar Power Generation Plant in Gwanda. The performance/scope of the work was guided by schedule 11 of the contract.

5. Clause 2(a) and (b) of the terms and conditions of the contract, under schedule 11, stated that the employer's advance for feasibility study and pre-commencement activities was to be considered part of the contract advance payment. A bank guarantee was to be provided against all payments made by ZPC towards the project implementation.”

I shall now turn to the nature of the exception to the charges and facts preferred against the applicants in the court a quo.

The exceptions were taken on the basis, that, even if the facts which are alleged in the charges and the outline of the State's case are proven, no criminal offence would have been established.

I say so because, the reading of the whole Outline of the State Case shows, that, this is purely a civil rather than a criminal matter. It therefore amounts to a futile enterprise if the trial were to proceed as I will demonstrate below....,.

I now turn to address the prospects of success of the exception filed on behalf of the accused persons on the merits. I shall not repeat the terms of each of the charges and facts for brevity.

The first two charges constitute of allegations that the accused persons committed fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The said section provides:

“Any person who makes a misrepresentation –

(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his or her prejudice, or realizing that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;
shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person…,."

The essential elements for the charge of fraud are therefore -

(a) The existence of a misrepresentation;

(b) The existence of an intention to deceive or realisation of the risk or possibility of deception;

(c) The intention to cause another person to rely upon the misrepresentation to their prejudice or the realisation that the possibility of reliance on the misrepresentation exists; and

(d) Causation of prejudice or potential prejudice.

These requirements are confirmed in the judgment relied upon by the State, to a large extent, the judgment in S v Chikukwa HH813-16.

The intention to deceive must exist at the time that the misrepresentation is made.

In this case, such intention must be alleged to have existed on each of the dates on which invoices were presented to the Zimbabwe Power Company (ZPC) for payment. The non-existence of such intention immediately becomes apparent if one considers, that, the relationship between the parties was regulated by an Engineering Procurement and Construction Contract (EPC) which authorised payment before works had been done.

All payments made by the Zimbabwe Power Company (ZPC) were advance payments. They were authorised by the contractual document. The intention by both parties, as expressed in the contract, was that work would be done after the payments.

That negates the intention on the part of the accused persons to cause any prejudice to the Zimbabwe Power Company (ZPC).

Any prejudice which may be alleged to have fallen upon the Zimbabwe Power Company (ZPC) or may potentially fall upon it was contemplated by the parties at the time of entering the contract and mitigatory measures were taken to guard against such prejudice.

In each case, therefore, a performance bond was required to have been supplied before payments were made.

The fact that it is alleged, that, no performance bonds had been supplied at the time of the making of some of the payments does not mean that there was any fraud.

The parties contemplated the possibility of breach of the contract by non-performance of the first accused person and took appropriate mitigatory measures. The non-implementation of the mitigatory measures can only be a breach of the contract if established.

In fact, the loss, in that event, would have been caused not by the malperformance of the contract but by the negligence of the Zimbabwe Power Company (ZPC) in paying where the contract provided that payments should have been made only when the performance bond or an advance payment guarantee was in place.

Such loss is not the loss or prejudice contemplated in terms of section 136 of the Criminal Law (Codification and Reform) Act.

The State also contends, that, the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] does not apply to the facts because it was not in existence when the contract between the parties was concluded.

The Public Procurement and Disposal of Public Assets Act came into effect on 1 January 2018.

The facts in the present matter took place from about the year 2015 when the contract was entered into.

Section 103 of the Public Procurement and Disposal of Public Assets Act provides, that, a procurement entity may apply to the Procurement Regulatory Authority of Zimbabwe, established in terms of the Act, to proceed with procurement under the new Act, or, alternatively, the Authority may direct a procurement entity to proceed under the new Act.

All procurement proceedings which were pending at the time the new Act came into force must therefore be concluded under the old Act.

The reliance by the accused persons on the new Act, and its specific clauses for dispute resolution, will therefore not likely succeed.

However, even in terms of the old Procurement Act, there was no criminalisation of non-performance on procurement contracts.

In addition, and even more telling, is the fact, that, the present matter is contractual.

It is one based on an Engineering Procurement and Construction Contract (EPC) Contract.

It is therefore supposed to be resolved contractually.

The law is that whenever a matter is contractual, and where the contract thereto is capable of providing effective redress, the parties wishes concerning dispute resolution, as captured in the contract, must be resorted to.

No room for extension of liability under a different remedial regime, like criminal law, must be allowed.

Put differently, the rule is that where the matter is entirely contractual, and where the contractual remedies provide sufficient redress, public policy dictates, that, contractants pursue their remedies contractually.

The complainant is a private company owned by the State. Like the accused persons, it must have the same rights and liabilities.

The law is that whenever the State or its affiliate enters into a contract, it must be treated equally as the other party to the contract. It must find its remedies and/or incur its liabilities in terms of the contract. The contract must be the beginning and the end in resolving whatever dispute that might arise between the parties - Minister of Natural Resources & Tourism v F C Hume (Pvt) Ltd 1989 (3) ZLR 55 (SC).

Intrinsically related to the above, the State stands in the same position as any other private commercial player, subject to the statutory regulation of its commercial activity; see GCO QUINOT, State Commercial Activity, Juta & Co 2009…,.

The ordinary principles of contract should therefore ordinarily apply.

In addition, the common law and statutory principles of administrative justice bind the State, which is required to adhere to fairness, transparency, integrity, and, amongst other things in the administration of public power; see PHOEBE BOLTON, The Law of Government Procurement in South Africa, Lexis Nexis, 2017 reprint…,.

This is because of the source of the power exercised despite the description of the complainant as a private limited company (GCO QUINOT, State Commercial Activity, Juta & Co 2009…,. quoting the leading case of Mustapha v Receiver, Litchenburg on the classification approach; PHOEBE BOLTON, The Law of Government Procurement in South Africa, Lexis Nexis, 2017 reprint…,.

The case of State v Lovemore Kurotwi & Anor HH270-16 is instructive.

It establishes, that, as a matter of law, where Government, as a contracting party, freely enters into a written contract, any subsequent negation of the terms thereof by the State depicts lack of candour on its part.

In verbatim, BHUNU J…, had this to say in the cyclostyled judgement:

“Both Government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.

It is also inconceivable that both Government and ZMDC could have believed that BSGR was the guarantor for Core Mining when Subithry Naidoo and Licht Yehuda signed the contractual document in their personal capacities as guarantors without any reference to BSGR. Considering that the contractual document was subjected to scrutiny by Government lawyers before execution it is highly unlikely and not in the least probable that they too could have been mistaken that BSGR were the guarantors for Core Mining when the written contract stipulated in clear and unambiguous terms that Subithry Naidoo and Licht Yehuda were the guarantors.

It is wholly unbelievable that Government, ZMDC, and Marange Resources could have genuinely believed that BSGR was standing as guarantor for Core Mining with the full knowledge that they had not accepted its counter offer. It therefore boggles the mind how all these three eminent entities, backed up by proficient lawyers, could have entertained the idea of contracting with BSGR without the contractual basics of offer and acceptance.”

From the foregoing, it is clear that Government entities are taken to have carried out all due diligence on the competencies of the contractor before entering into a contract with them. By equal measure, the complainant is considered to have been satisfied by the technical and financial capacity of the accused persons together with their partners.

It is improbable, that, the State would consider itself a victim of fraud when it was a willing participant in entering into the Engineering Procurement and Construction Contract (EPC) with the accused persons.

Even in cases involving private entities alone, Criminal Law has never been recognised as a competent remedy to compel a party to a contract to perform in terms thereof.

In the case of Brian Tarisai Kambasha & Anor v The State HH36-17, the court took occasion to remind the parties, that, their relationship was contractual, and, in instances where money was exchanged in the anticipation of performance of certain agreed contractual obligations, the relationship becomes civil, in the form of a debtor and a creditor.

In the above case, the accused persons were convicted of theft of trust property in terms of section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 5 years in prison at the Harare Magistrates Court.

The charges arose from a contractual undertaking, in terms of which the accused persons undertook to erect a 100KVA solar plant at the complainant's farm. The complainant's discontent arose when he became frustrated with the accused's failure to complete the installation of the solar plant within the time limits agreed by the parties in a written and signed memorandum of agreement. In pursuance of the first phase of the agreement, the complainant advanced the sum of US$50,125 to the accused and they cleared the ground and erected metal poles, but failed to put into place the solar panels to complete the project.

According to the accused, the work which they did constitutes 80% of the project. The complainant estimated the value of the work done to have been US$3,000 of work. After the poles had been erected, the accused persons stopped work. They said it was because the US$50,125 had been used up due to a failure to get a 60% discount promised to the complainant upon entering into the agreement. On the other hand, the complainant's concerns, when he reported the accused to the police, were that they had downed tools because they had converted the funds to their own use.

This case is almost at all fours with the matter in question.

In determining this case, on appeal, MUSHORE J sitting with HUNGWE J were correct in the reasoning that:

“The State failed to establish a prima facie case at the closure of the State case and the [Accuseds'] application for absolution from the instance should have been granted. It is our considered view, that, the essential elements for the offence of theft of trust property, as cited and appearing in section 113(2)(d), were not met. The complainant should have proceeded with a civil claim for breach of contract and sued for either specific performance or for cancellation and damages. The facts of this case fall within the exceptions which are expressly provided for in section 112 of the Criminal (Codification and Reform) Act [Chapter 9:23].”…,.

This case clearly sets out similar procedure which the complainant in the current case, the Zimbabwe Power Company (ZPC), ought to have followed.

By reason and standard of this case, it is correct to propound, that, the criminal proceedings against the accused persons are unfounded, misled, and misdirected.

Criminal Law is not a procedure for the enforcement or the remedy of alleged breach of contract.

There are specific measures provided for this under both the contract itself and the regulatory statutory regime.

It has been held, that, the State does not need the help of the Criminal Law to relate to the enforcement and remedy of public contracts: see State v Lovemore Kurotwi & Anor HH270-16.

The complainant is a procuring entity regulated by the procurement regime and wholly owned by the State in its commercial activity. To that end, its commercial activities cannot be assisted by the criminal arm of the State in enforcing obligations which arise from private commercial transactions governed by a contract.

It is clear, that, the allegations against the accused persons were an arbitrary ploy by the State to get an unfair advantage in a contractual issue for which the State is indirectly a party. The State, being party to a contract, must enforce its rights, civilly, without flexing its muscles needlessly in order to intimidate a private party....,.

In terms of the well-known parole evidence rule, no one can speak on its behalf as it is the exclusive memorial of the parties agreement. The parties are strictly bound by the four corners of the contractual document. The parties cannot add or subtract anything from the contractual document.

The Criminal Court, therefore, does not have jurisdiction to hear or otherwise determine a case of a civil nature, such as this one.

To buttress the foregoing, it suffices to record, that, it is settled practice, that, where a fraudulent misrepresentation is alleged in the performance of contractual obligations, the remedies available to the aggrieved party are not criminal but rather civil in the form of a claim of damages, specific performance, or termination of the contract.

SC82-22 : AMOS GWINYA vs THE STATE
Ruled By: BHUNU JA

This is an application for leave to appeal against the judgment of the High Court (the court a quo).

The applicant was convicted of murder with constructive intent and sentenced to 10 years imprisonment. He applied for leave to appeal before the court a quo without success. He now brings the application in terms of section 44 of the High Court Act [Chapter 7:06] as read with Rule 20(1) of the Supreme Court Rules 2018.

BRIEF SUMMARY OF THE CASE

The applicant was charged with murder in the court a quo as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He is alleged to have intentionally killed his wife, Nyasha Mudzimu, in a feat of domestic violence. He pleaded not guilty to the charge but offered a plea of guilty to the lesser charge of culpable homicide.

The facts leading to the deceased's death are by and large common cause. It is common cause, that, on the night of 6 March 2020, the deceased and the accused had a fight in their bedroom. Neighbours intervened and quelled the commotion after hearing the now deceased's screams.

The fight, however, broke out again after the neighbours had left.

The deceased bolted out of the bedroom with the accused hot in pursuit. The deceased fell down. The accused continued to attack the deceased while she lay on the ground. The deceased sustained serious head injuries. She was hospitalised from 7 March to 6 April when she succumbed to death due to the injuries.

The post-mortem report revealed the following facts:

(i) The deceased was being managed for severe head injury from 7 March 2020 to 6 April 2020.

(ii) The CT scan on the brain showed intra-cerebral haemorrhage due to oedema.

(iii) Head swelling and body bruises.

(iv) Cause of death due to head injury.

The State case was that the accused was guilty of murder with constructive intent because he continued to attack the deceased realising that the attack might result in the deceased's death. It was therefore the State's case that death was due to the assault.

On the other hand, the accused admitted having caused the deceased to fall by chasing after her but denied that it was the assault he perpetrated on her that caused the fatal head injury. It was his defence, that, the deceased sustained the injury when she fell and hit her head on hard ground. He admitted that he was negligent in chasing the deceased in the manner he did, hence the tender of a plea of guilty to culpable homicide.

The applicant's defence is captured in his warned and cautioned statement in which he says:

“We fought and I overpowered her. We started when we were inside the bedroom and she tried to run away. That is when I followed her outside. Then she fell down and I hit her with open hands and kicked her with booted feet. The neighbours then came and restrained us. I never used any weapon against her. I never intended to kill her. It was just a mistake and I did not intend to reach that extent.”

On those facts, the court a quo found that it was improbable that the fatal head injuries were sustained through a simple fall. It reasoned that a healthy young lady was unlikely to die from a simple fall. It therefore concluded, as a matter of fact, that, the vicious assault that the applicant perpetrated on the deceased probably caused the deceased's death.

THE LAW

In terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act, murder with constructive intent is committed when the accused persists with conduct which he realizes might cause his victim's death. The section provides as follows:

“47 Murder

(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.”

Professor FELTOE in his book, Guide to Criminal Law in Zimbabwe 2005…, states that an accused person can only be convicted of murder with constructive intent if the only reasonable inference that can be drawn from the facts is that he had the legal intention to kill.

In drawing such inference, the court decides that he must have and did foresee the possibility of death.

In this case, it is plain that apart from mere conjecture and speculation there is no direct evidence establishing as to how the deceased sustained the fatal injury. There are clearly three distinct possibilities:

(i) Either she fell and hit her head against the ground while fleeing from the applicant; or

(ii) The assault caused the fatal injury; or

(iii) A combination of both the fall and the assault.

There was no evidence to corroborate the State's assertion that the deceased sustained the fatal injury from the assault perpetrated on her by the applicant. The postmortem report is silent on how the deceased sustained the fatal head injury.

The court a quo therefore convicted the applicant by drawing the inference from the proven facts.

In drawing that inference, the court a quo had this to say at p5 of its cyclostyled judgment:

“On the aspect of falling of the deceased, it is probable that the deceased could have fallen and injured herself, but, it is inherently improbable that a healthy young woman would cause herself such fatal injury simply from falling to the ground. In any case, the accused purposely pursued the deceased with the intention of perpetrating further assaults. Had the deceased sustained serious injury by falling, accused could not have embarked on assaulting her on the upper part of her body. To us, it is far more probable that the injury on the head, which caused deceased's death, was caused by stamping and kicking of accused (sic). Accused also punched the deceased on the head using a fist."…,.

It is self-evident from the above quotation that the court a quo made a specific finding of fact that it is probable that the deceased could have fallen and injured herself while fleeing from the applicant. That finding accords with the proven facts. The natural consequence of which was to disable the court a quo from drawing assault as the only inference that caused the fatal injury.

The law, however, requires that in the circumstances of this case, for the accused to have been found guilty of murder with constructive intent, death due to assault ought to have been the only reasonable inference to be drawn from the proven facts.

The court's specific factual finding, that death could be attributed to another cause, rendered the conviction of murder precarious on appeal.

DISPOSAL

Having regard to the court a quo's finding of fact, that, apart from the assault perpetrated on the deceased by the applicant, death can also be attributed to the deceased falling down, I therefore can only find that the applicant has good prospects of success on appeal.

That being the case, it is accordingly ordered that:

1. The applicant is granted leave to appeal against the decision of the High Court under judgment number HMT45-21.

2. There is no order as to costs.

Appealed SC36-15 : LOVENESS MATIONE vs THE STATE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against a decision of the High Court in terms of which the appellant's discharge by the magistrate at the close of the State case was set aside and the matter remitted to the magistrate for continuation of trial.The background to this matter is that the appellant ...

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Law Portal
Zimbabwe

Jurisdiction re: Approach, Assumption of Jurisdiction, Functus Officio and Judicial Deference

HB24-14 : THE STATE vs DERRECK ZUVA
Ruled By: MUTEMA J

CCC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

HMT59-19 : NOREST CHIGWADA vs THE STATE
Ruled By: MUZENDA J

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

HH229-19 : INTRATREK ZIMBABWE (PVT) LTD and WICKNELL CHIVAYO vs PROSECUTOR GENERAL OF ZIMBABWE and L. NCUBE N.O.
Ruled By: TAGU J

SC82-22 : AMOS GWINYA vs THE STATE
Ruled By: BHUNU JA

Appealed SC36-15 : LOVENESS MATIONE vs THE STATE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

Categories

Law Portal Zimbabwe

Jurisdiction re: Approach, Assumption of Jurisdiction, Functus Officio and Judicial Deference

HB24-14 : THE STATE vs DERRECK ZUVA Ruled By: MUTEMA J

CCC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE Ruled By: MAKARAU JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

HMT59-19 : NOREST CHIGWADA vs THE STATE Ruled By: MUZENDA J

HH531-17 : STATE vs JOHANNES TOMANA Ruled By: CHITAPI J

HH229-19 : INTRATREK ZIMBABWE (PVT) LTD and WICKNELL CHIVAYO vs PROSECUTOR GENERAL OF ZIMBABWE and L. NCUBE N.O. Ruled By: TAGU J

SC82-22 : AMOS GWINYA vs THE STATE Ruled By: BHUNU JA

Appealed SC36-15 : LOVENESS MATIONE vs THE STATE Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

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Law Portal
Zimbabwe

HB24-14 : THE STATE vs DERRECK ZUVA
Ruled By: MUTEMA J

CCC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

HMT59-19 : NOREST CHIGWADA vs THE STATE
Ruled By: MUZENDA J

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

HH229-19 : INTRATREK ZIMBABWE (PVT) LTD and WICKNELL CHIVAYO vs PROSECUTOR GENERAL OF ZIMBABWE and L. NCUBE N.O.
Ruled By: TAGU J

SC82-22 : AMOS GWINYA vs THE STATE
Ruled By: BHUNU JA

Appealed SC36-15 : LOVENESS MATIONE vs THE STATE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA