Sidingumuzi Ncube and 9 Others v The State

### Preamble
1
HB 106-19
HC (CRB) 118/18
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SIDINGUMUZI NCUBE

and

JEFAT CHAGANDA

and

TYSON RUVANDO

and

GODFREY MAKUVADZE

and

LADISLOUS TAMBOONEI

and

ADMIRE RUBAYA

and

LADISLOUS TINACHO

and

GINGER VHIYANO

and

STANLEY CHINYANGANYA

and

TIMEON TAVENGWA MAKUNDE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 6, 7, 8 AND 9 NOVEMBER 2018,

3, 4, 5, 6 AND 7 DECEMBER 2018, 17, 18 AND 21 JANUARY 2019,

12, 13 AND 14 MARCH 2019, 13 MAY 2019 AND 5 JULY 2019

Judgment on the Application for Leave to Appeal

C Ndlovu for the 1st, 3rd, 4th and 8th accused persons

T Muganyi for the 2nd accused person

T Muganyi and M Mahaso for the 5th and 7th accused persons

T Mpofu, O Marwa and T Tabana for the 6th accused person

P Butshe for the 9th accused person

B Mufadza for the 10th accused person

Mrs T R Takuva for the state

MABHIKWA J:	The accused (hereinafter referred to as “the applicants” charged are facing a charge of “Theft” as defined in section 113 (1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] or alternatively “Defeating or obstructing the course of justice as defined in section 184 (1) (a) of the same Act.

At the closure of the state case, all the applicants filed respective applications for discharge at the close of the prosecution case.  The applications were made in terms of section 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07].  The applications were all dismissed on 13 May 2019, and all the applicants were placed on their defences.  Dissatisfied with the dismissal of their applications, the 6thapplicant immediately made a request to make a written (not oral) application for leave to appeal to the Supreme Court against the dismissal of his application.  The court, in its discretion, allowed the applicant to make his written application but directed that any applications to be filed and any supporting documents should be filed on or before 20 May 2019.  The State was directed to file its response or responses on or before 21 May 2019.  Only accused ten (10) filed his papers within that time frame as directed by the court.  The matter was then postponed to 5 July 2019.

Regrettably most applications and supporting documents were filed way out of the time directed by the court, some being filed even a week, two (2) days and a day before the next court date (5 July 2019).

The applicants have premised their application on section 44 (5) of the High Court Act which provides that;

“subject to the rules of court, where a judge of the High Court has made an interlocutory order or given an interlocutory judgment in relation to any criminal proceedings before the High Court—

(a)	The person against whom the criminal proceedings are being or will be brought; or

(b)	The Prosecutor General; may, with the leave of a judge of the High Court or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against the interlocutory order or interlocutory judgment.” (Underlying is mine)

The applicants argue that the above section in effect grants them the right to appeal to the Supreme Court against an interlocutory decision of the High Court after first making an application for leave to do so.

It will appear from the wording of section 44 (5) of the High Court Act that an accused person has a right to appeal to the Supreme Court against an interlocutory decision made by a judge of the High Court in any proceedings before him.  In other words, the section refers to all interlocutory orders or judgments generally.

However, it is important to note that section 198 (3) of the Criminal Procedure and Evidence Act, specifically removes an interlocutory judgment, or order, which is in the form of a dismissal of an application for discharge at the close of the state case from the ambit of the “general” interlocutory orders envisaged in section 44 (5) of the High Court Act.

Simply put, only the Prosecutor General is covered by both section 44 (5) of the High Court Act and section 198 (3) of the Criminal Code as having the right of appeal against an interlocutory order or judgment, upon being granted leave to appeal by a judge of the High Court or Supreme Court.  It is a different scenario with the accused.

In my view, it is for the above reasoning and interpretation, that whilst an application for discharge at the close of the state case and an order dismissing it, is interlocutory in nature, the Supreme Court has repeatedly held that it does not fall within the ambit of section 44 (5) of the High Court Act.

Section 198 (3) of the Criminal Procedure and Evidence Act on its part provides thus;

“If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.

(4)	If the Prosecutor General is dissatisfied with a decision—

(a)	of a judge of High Court in terms of subsection (3), he may with leave of a judge of the Supreme appeal against the decision to the Supreme Court.”

This Court would find reason in Ms N Ndlovu for the state’s submissions that in S v Kachipare – 1998 (2) ZLR 271 (S), (where three Judges sat) wherein the Court was dealing with an appeal following conviction of the accused, the basis of which was that the Court ought to have discharged the Appellant at the close of the State case, it was stated thus;

“It is to be noted that subsection (3) of section 198 gives the accused person no right of appeal against a refusal to discharge.  Only the Attorney-General under subsection (4) may, with the leave of a Judge of the Supreme Court, exercise the right of appeal, if dissatisfied with a decision given in terms of subsection (3).  However, the express grant to an accused may have been considered unnecessary by the Legislature as s44(a) of the High Court Act [Chapter 7:06] permits a person convicted in a criminal trial, held by the High Court, to appeal as of right to the Supreme Court against such conviction on any ground of appeal which involves a question of law alone.  The refusal of a discharge upon consideration of whether the evidence was such that a reasonable man, acting carefully, might properly convict, involves a question of law.” (my emphasis)

The above quoted sentiments were reiterated in S v Hunzvi 2000 (1) ZLR 540 (S) by GUBBAY C J in chambers.  The Judge in that case was dealing with exactly the same issue that has arisen in the case at hand-wherein the accused was seeking leave to appeal against the High Court Judge’s ruling dismissing their application for discharge at the close of the State’s case.  While the learned judge restated the Kachipareposition that no right of appeal lies against the decision of a court refusing to discharge an accused at the close of the case for the prosecution he went further to state that, “obviously, the absence of a right to appeal against such a judgment makes it impermissible for both a trial Judge, and a Judge of this court, to grant leave to appeal.” (my emphasis).  It was further enunciated that the only person who has been clothed with the right of appeal at the close of the state case is the Attorney-General (now Prosecutor General) in terms of section 198 (4) (a) of the Criminal Procedure and Evidence Act, who may only do so with the leave of Supreme Court Judge.  The reasoning behind this is clearly that once an application for discharge at the close of the state case is granted, the matter would have come to an end whereas the placing of an accused on his defence does not conclude the matter as the trial will still be ongoing till the close of the defence case.  Basically what this means is that a refusal of a discharge at the close of the case does not amount to a conviction but rather a call for an accused to explain himself on certain aspects that would have been brought out during the state’s case.  The Judge in the Hunzvi case supra went on to state that the specific mention of the Attorney-General (now Prosecutor-General) in section 198 (4) (a) in total exclusion of an accused can only lead to one conclusion that that was exactly the intention of the Legislature.  Such a situation, granting the Attorney-General the right to appeal to the exclusion of an accused, was found to be neither unjust or leading to an inconsistency by the Judge since section 44 (2) (a) of the High Court Act gives an accused an absolute right of appeal to the Supreme Court against conviction on any ground of appeal which involves a question of law alone of which the refusal to discharge at the close of the case is.

In Hunzvi (supra) the applicant,ChenjeraiHunzvi was on trial in the High Court on four (4) counts of fraud.  At the close of the state case, his counsel applied for discharge on all 4 counts.  The application was dismissed.  Dissatisfied with the ruling defence counsel applied to the trial Judge for leave to appeal.  The application was refused on the ground that no appeal lies against the decision of the court refusing to discharge an accused at the close of the state case.  The applicant then sought leave from a Judge of the Supreme Court against what was claimed to be the interlocutory judgment of the High Court.

It was held in that case that;

“The accused has no right of appeal against the refusal of a trial Judge to discharge at the end of the prosecution call because at that stage the final determination of the trial has not been realized and the proceeding are still on going.  After conviction however, the accused has the absolute right, under section 44 (2) (a) of the High Court [Chapter 7:06] to appeal to the Supreme Court on any ground involving a question of law.  A refusal to discharge is a question of law and so may be relied upon as a ground of appeal.  The ground of refusal to discharge would only succeed if on appeal it were found that at the close of the state case, there was no evidence justifying a conviction and that the defence case furnished no proof of guilt.”

It was held also that however the Attorney General, (now Prosecutor General), has that right in terms of section 198 (4) (a) of the Criminal Procedure and Evidence Act to appeal against the accused’s acquittal at the end of the prosecution case, of course with leave to do so.  It was reasoned and held that the specific and sole mention of the Attorney General in that section (s198(3) warrants the conclusion that the legislature intended to exclude a right of the accused to appeal against refusal to discharge.  This was so because the discharge of an accused at that interlocutory stage means an acquittal and a termination of the trial but not so when his application is dismissed.  He is simply being called upon to give his version of the events and to provide answers to all or some aspects of the prosecution witnesses’ evidence which tend to incriminate him.  He has not been convicted and the trial is not yet over.

I have not been persuaded to consider that the court’s sentiments in Guwa and Another v Willonbiby Investments (Pvt) Ltd 2009 (1) ZLR 380 together with section 44 (5) of the High Court Act as read with sections 176 and 56 (1) of the Constitution of Zimbabwe have changed the superior courts’ position on the undesirability of intervening in a lower court’s uncompleted proceedings to the extent argued by the applicants in casu. Neither have I been persuaded to believe that Hunzvi’s case was wrongly decided.

Surely, it has always been in exceptional cases such as in IsauraMasinga v MsSande (NO) and Prosecutor General –HH 372/19, that the court will interfere.

In Isaura Masinga’s case, the court showed extreme outrage at the grave injustice that had resulted from the failure to discharge the accused at the closure of the state case, given the somewhat “ubsurd” circumstances of that case.  It was held to be a “typical example of exceptional circumstances or compelling reasons for a superior court to intervene or stop a harmful trial.”

Even in those circumstances, the court still had the mind to caution as follows:

“This court will ordinarily not sit in judgment over a matter before an inferior court except in very rare circumstances where a grave injustice would occur if it does not intervene.  While it is correct that this court has review jurisdiction over unterminated proceedings it is always slow to intervene in unterminated proceedings of an inferior curt except in cases of gross irregularities in the proceedings or where it is apparent that justice may not be attained by any other means.”

The principle that a superior court will only interfere in unterminatedproceedings of an inferior court in exceptional circumstances of gross irregularity vitiating the proceedings or in rare cases of grave injustice has been hallowed by repetition over a number of years in judicial pronouncements.  See Ndlovu v Regional Magistrate, Eastern Divisionand Another 1989 (1) ZLR 264 (H) at 269 C-270g; Masedza and Others v Additional Magistrate Rusape and Another 1998 (1) ZLR 36 (H) at 41C, Ismael v Additional Magistrate Winberg and Another 1963 (1) SA 1 (A) at p 4; Attorney GeneralvMakamba 2005 (2) ZLR 54 (S) at 64.

“The general rule is that a superior court should intervene in uncompleted proceedings in a lower court only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice, which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of a litigant.”

The court will not spend so much time repeating the evidence in this case as well as the reasoning behind its decision to dismiss the applicant’s application for discharge at the closure of the prosecution case.	That aspect was dealt with at length and extensively in the judgment dismissing the application.  The record of proceedings itself will in fact clearly support that judgment.

Surfices to say that it was clearly shown that witnesses like MehluliDube and Vusumuziincrimated the applicants yet they came into the matter well before the involvement of LovemoreSibanda.MehluliDube laughed, and expressed that it appeared strange to them at Fidelity that accused six (6) phoned some weeks before the 10th of August 2018 stating that he and a colleague minor would deposit at Fidelity about 15kgs of gold on 10 August 2018.  Indeed on exactly 10 August 2018, accused 6 did as he had promised as he and his colleagues took a few grams short of 15kg of gold to fidelity.  The state of the gold apparently was the other strange phenomenon to fidelity staff although of course it left than very happy.  The question that one has to ask is- was accused 6not talking to Fidelity staff about gold that was already in existence?Should he and his colleagues who went to Fidelity not explain the coincidence, if any, of his phone calls to Fidelity as testified to by Dube and the fact that on the same date (10 August 2018) accused 2 is then acquitted and 14, 710kgs of gold is released to him by the court and immediately on the same date accused 1, 2, 5, 6, two others and the accomplice witness LovemoreSibanda drive from Plumtree to Fidelity at high speed?

VusumuziSayialso testified as to how he was phoned by accused 1 and how finally LovemoreSibanda was roped in to assist with his mining papers at Plumtree.  Vusumuzi was the one who in factintroduced LovemoreSibanda to accused 1.  Accused 1 in turn introducedSibanda to accused 2 and 4, and later to accused 6, as the plan to have both accused 2 and the gold released, rolled into action.

Apart from that, there was the evidence of CCTV footage at Fidelity printers and at LovemoreSibanda’s house which clearly raised questions that the applicants no doubt had to answer.  Then there was the evidence of recoveries of various assets particularly motor vehicles and money, allegedly proceeds of the crime which again raised questions and the applicants needed to provide answers.

The above, coupled with the evidence of Joshua Matovanyika corroborated the evidence of LovemoreSibanda, though an accomplice witness.

It is therefore wrong to narrow the state evidence only to LovemoreSibanda and insinuate that the court simply believed and relied on the evidence of him, “a witness who came to court and told it that he had lied to the court at Plumtree.”

It is quite disturbing that some submissions in these applications were very sensational in their untruthfulness or, to use a more respectable phrase, lack of accuracy. Lovemore never testified at Plumtree magistrate’s court and never lied to any court. He also never said so to this court. What was common cause and he himself admitted repeatedly in evidence in this court is that he was part of a team that set out to mislead the court using his mining papers.  As soon as he was romped into the team, he and others, especially accused 6, set out scheming how those papers would be used, including falsifying some of them.  The papers eventually remained with accused 6 who used them in the “fake” cross-examination of the now accused 5,(then investigating officer of the case against now accused 2) to use his word.  Sibanda actually remained outside court throughout the proceedings as he was told to so by accused 6.  To claim therefore that Sibanda lied to that court is clearly incorrect.

Another glaring example is that of KailosiMoyo.  KailosiMoyo never testified in this court neither did he get involved in the Plumtree case.  He was simply mentioned briefly by VusumuziSayi as the person who linked him (Vusa) and LovemoreSibanda.  Yet in the application for leave to appeal for SidingumuziNcube, Tyson Ruvando and Godfrey Makuvadze (accused 1, 3, and 4) counsel lists KailosiMoyo as one of the state witnesses who testified orally, and even goes on to briefly analyse his evidence and submits that “This witness did not assist the state case at all against me?”

The court is also satisfied, as the judgment dismissing the application for discharge will show, that it dealt with each and every accused person and sufficiently gave reasons for placing each on his defence.  It did not take a “blanket approach” as claimed in one application for leave to appeal.

The court was also referred to cases that related to comments by the Supreme Court were gross miscarriage of justice would have occurred by placing the accused on his or her defence.  But those cases would be on appeal after the completion of the trial.  They are not like the current case or the ChenjeraiHunzvi case.

Accordingly, the applications for leave to appeal are dismissed.  All the applicants are denied leave to appeal and as such, the trial should proceed.

Gonese and Ndlovu, 1st, 3rd, 4th& 8th accused’s legal practitioners

Nyikadzino, Simango& Associates, 2nd accused’s legal practitioners

Tanaka Law Chambers’ 5th& 7th accused’s legal practitioners

Rubaya and Chatambudza, 6th accused’s legal practitioners

MathonsiNcube Law Chambers, 9th accused’s legal practitioners

Mufadza and Associates, 10th accused’s legal practitioners

National Prosecuting Authority, the state’s legal practitioners