Admire Rubaya v The State & 8 Ors

### Preamble
1
Judgment No. SC 84/19
Chamber Application No. SC B 13/19
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REPORTABLE     (79)

ADMIRE     RUBAYA

v

(1)      THE     STATE       (2)     SIDINGUMUZI     NCUBE     (3)     JEFAT     CHAGANDA     (4)     TYSON     RUVANDO      (5)     GODFREY     MAKUVADZE

(6)     LADISLOUS     TAMBOONEI     (7)    LADISLOUS     TINACHO                             (8)     STANLEY     CHINYANGANYA     (9)     TIMEON     TAVENGWA     MAKUNDE

SUPREME COURT OF ZIMBABWE

MATHONSI JA

HARARE: SEPTEMBER 5, 2019 & OCTOBER 24, 2019

T. Mpofu with T. Tabana and O. Marwa, for the applicant

Ms T. R. Takuva with Ms N. Ndlovu and B. Maphosa, for the first respondent

No appearance for the second respondent to the ninth respondent

IN CHAMBERS

MATHONSI JA: 	This is an application for leave to appeal against the judgment of the High Court dismissing the applicant’s application for discharge at the close of the State case in a criminal prosecution that is yet to be completed.

The background facts show that this is indeed a unique case in which all the participants in a criminal trial staged at Plumtree Regional Magistrates Court are now on trial at the High Court for allegedly conducting what the State regards as a sham trial. The result of that trial was the acquittal of the accused person, Jefat Chaganda. He was facing charges of unlawful possession of and smuggling of gold and the release of the gold in question to one Lovemore Sibanda who claimed it as his own. The present applicant is a practising legal practitioner running a law firm in Harare, Rubaya and Chambatambudza. He represented Jefat Chaganda during the criminal trial and secured Chaganda’s discharge at the close of the State case.

Subsequent to the discharge at the close of the state case, he was jointly charged with nine others who included the public prosecutor, the Regional Magistrate, the accused person he had represented at the trial and all the police officers involved in that prosecution. They were charged with theft as defined in s 113 (1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23] (the Criminal Law Code), it being alleged that on 10 August 2018 at ZRP Plumtree they unlawfuly took 14,710 kilograms of gold knowing that its lawful custodian, ZIMRA, was entitled to possess or control it or realizing that risk and intending to permanently deprive ZIMRA of such possession and control.

Alternatively, they were charged with defeating or obstructing the course of justice as defined in s 184 (1) of the Criminal Law Code. The allegations were that during the period extending from 7 July 2018 to 10 August 2018 at Plumtree, they unlawfully caused judicial proceedings to be defeated or obstructed, so intending or realizing that risk. They allegedly made by making written or oral statements adducing false evidence in a case of unlawful possession of and smuggling of 14, 710 kilograms of gold against Jefat Chaganda which was at Plumtree Magistrates Court. By so doing they secured the release of the gold to one Lovemore Sibanda the proprietor of Qalo Mine in Gwanda who was not the lawful owner of the gold.

All the accused persons pleaded not guilty resulting in the prosecution leading evidence from thirty-one witnesses. Midway through the State case the State withdrew charges against one of them, Ginger Vhiyano, but proceeded against the rest. At the close of the prosecution case the applicant, and indeed all his co-accused, made an application for discharge in terms of s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07] on the ground that the prosecution had failed to prove a prima facie case. I will confine myself only to the applicant’s application.

The application for discharge did not find favour with the court a quo which concluded that the State had established a prima facie case and dismissed the application. The applicant was aggrieved. He made an application for leave to appeal but the trial court dismissed the application. In doing so the court a quo observed that s 44 (5) of the High Court Act [Chapter 7:06] does give an accused person a right to appeal against any interlocutory decision in criminal proceedings. The court however went on to find that s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07] specifically “removes” the interlocutory judgment dismissing an application for discharge at the close of the State case from the ambit of interlocutory decisions envisaged by s 44 (5) of the High Court Act.

The court a quo drew inspiration from two decisions of this Court in concluding that an accused person appearing in the High Court has no right of appeal against the dismissal of his or her application for discharge at the close of the prosecution case. It relied firstly on the case of S v Kachipare 1998 (2) ZLR 271 (S) where at 279 B-D the court stated:

“It is to be noted that ss 3 of s 198 gives the accused no right of appeal against a refusal to discharge. Only the Attorney-General (now the Prosecutor General) under ss 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 ss 3. However, the express grant to an accused may have been considered unnecessary by the legislature as s 44 (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.”

In that case the court went on to find that once an accused person is wrongly put to his or her defence and is ultimately convicted, there is no right to argue on appeal that the trial court erred in refusing to discharge at the close of the State case. It did not relate to s 44 (5) of the Act.

In addition, the trial court also placed reliance on the case of S v Hunzvi 2000 (1) ZLR 540 (S), a case decided by GUBBAY CJ in chambers. The headnote states:

“Held, that the accused has no right of appeal against the refusal of a trial judge to a discharge at the end of the prosecution case because at that stage the final determination of the trial has not been reached and the proceedings are still on going. After conviction however, the accused has the absolute right, under s 44 (2) of the High Court Act [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 prosecution case there was no evidence justifying a conviction and that the defence case furnished no proof of guilt.

Held, further, that on the other hand, the Attorney General (now the Prosecutor General) may, in terms of s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07] with leave, appeal against the discharge of the accused at the end of the prosecution case. The specific and sole mention of the Attorney General (now the Prosecutor General) in this section warrants the conclusion that the legislature intended to exclude a right of the accused to appeal against refusal to discharge. The maxim expressio unius est exclusio alterius applied. The application of this maxim did not lead to inconsistency or injustice.”

The trial court concluded that it was impermissible for it to grant leave to appeal because no such right of appeal exists. The court a quo was not persuaded that s 44 (5) of the High Court Act [Chapter 7:06] as read with s 176 and s 56 (1) of the Constitution have changed the position relating to the undesirability of interfering in unterminated proceedings of a lower court.

Mr Mpofu for the applicant strongly submitted that there was an irregularity in the High Court’s failure to deal with the real issue which was placed before it namely whether the applicant was entitled to be granted leave to appeal in order to deal with the question whether it is correct at law to hold that an accused person whose application for discharge at the close of the State case has been dismissed has no right of appeal with leave. That issue was completely ignored by the court and no reasons were given as to why it was discarded.

He submitted further that the authority of S v Hunzvi, supra, which was relied upon in dismissing the application for leave is of doubtful correctness and judicial policy is that if there is a judgment which lays the law whose correctness a party desires to test on appeal, the right to test it must be given. Mr Mpofu relied on the authority of Mukoko v Commissioner General of Police and Ors SC 3/09 and Chikafu v Dodhill (Pvt) Ltd and Ors    SC 28/09 to make the point that where judicial uncertainty has been introduced and there are two positions which are both potentially correct, leave must be granted so that a seal of finality is put on the issue by the apex court.

The judgment in the case of S v Hunzvi was challenged on the basis that it is a one member decision and not one made by a a panel of at least three Judges as required by s 3 of the Supreme Court Act for the exercise of jurisdiction. While not addressing the issue of the right to test the correctness of S v Hunzvi, supra, Ms Takuva for the respondent insisted that the case correctly states the law, that there is no right of appeal by an accused person.

Two key provisions lie at the centre of this application. These are s 44 (5) of the High Court Act [Chapter 7:06] and s 198 (3) and (4) of the Criminal Procedure and Evidence Act         [Chapter 9:07]. Section 44 (5) provides:

“(5) Subject to rules of court, where a judge of the High Court has made 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.” (The underlining is mine).

On the other hand, and against the backdrop of s 44 (5) which appears to give an accused person the right to appeal an interlocutory judgment with leave, s 198 (3) and (4) of the Criminal Procedure and Evidence Act provide:

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

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

a) of a judge of the High Court in terms of ss (3), he may, with the leave of a judge of the Supreme Court, appeal against the decision to the Supreme Court; or

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

Clearly s 198 (4) does not give an accused person aggrieved by a decision to dismiss an application for discharge at the close of the prosecution case a right to appeal with leave. It only accords that right to the Prosecutor General. Indeed, it is not difficult to understand why that is so. A decision to discharge an accused person at that stage terminates the criminal proceedings completely leaving the accused person to happily go home. In that regard the only party with an interest to test the correctnesss of the discharge is the Prosecutor-General whose prosecution of an accused person would have failed. Surely the Prosecutor-General should be allowed to appeal in those circumstances.

It has been said in the past that the accused person has no such right because he or she would have the right to appeal at the end of the trial. Compare the reasoning of CHIDYAUSIKU J (as he then was) in S v Beahan (2) 1989 (1) ZLR 359 (HC) at 362 G who, while finding the existence of a right to appeal an interlocutory judgment, concluded that it was undesirable and prejudicial to the proper administration of justice that appeals should be heard piecemeal.

In fact the High Court found that s 198 (4) “removed” the right of an accused person to appeal against a interlocutory judgment with leave. In my view that is clearly wrong. The correct interpretation is that s 198 (4) is silent on the right of an accused person to appeal. In interpreting the two provisions, it is important to commence from the simple premise that they seemingly deal with the same issue. According to the cannons of statutory interpretation, any interpretation of the two must endeavor to reconcile one with the other. In principle, a court must give effect to every word or clause used in a statute on the basis that the legislature did not intend to be superfluous; void, insignificant or repetitive. See Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 at 436.

There can be no doubt that the dismissal of an application for discharge at the end of the prosecution case is an interlocutory decision. Section 44 (5), which incidentally is made only subject to the rules of court and certainly not subject to any other enactment, allows a person against whom criminal proceedings are brought to appeal to the Supreme Court against an interlocutory judgment or order with the leave of a judge of the High Court or a judge of the Supreme Court. It is that leave which the applicant is seeking. Clearly once it is accepted that the dismissal of the application for discharge is interlocutory in nature then it ought to fall within the purview of s 44 (5).

The section lists both the accused person and the Prosecutor–General as having the right to seek leave. The intention of the legislature was never to differentiate between the accuser and the accused in giving the right to appeal. The right that is apparent in s 44 (5) is not repeated in s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07] which deals specifically with the procedure at the close of the case for the prosecution. It only accords the right to appeal with leave to the Prosecutor-General obviously because the grant of a discharge at that stage terminates the proceedings and the Prosecutor-General would be the only one adversely affected by a decision to discharge made in terms of that provision.

I have said that the right created by s 44 (5) is not subjected to any other enactment as is usually done when the intention of the legislature is to subordinate a provision to another provision contained in a different enactment. The provision is only made “subject to the rules of court” and it was not suggested that those rules proscribe the right of an accused person to seek leave to appeal against a dismissal of an application for discharge at the close of the prosecution case. Had the legislature intended to make the right to appeal subject to s 198 (4) of the Criminal Procedure and Evidence Act, it would have made it subject to it or any other enactment. It did not.

The intention of the legislature to be deduced from a simple reading of s 44 (5) is that both the accused person and the Prosecutor-General have the right to appeal against any interlocutory decision in criminal proceedings before the High Court. It could not have been the legislature’s intention to create an absurdity by providing a right in s 44 (5) and then taking it away through s 198 (3) of the Criminal Procedure and Evidence Act without specifically saying so. I am fortified in that position by the presumption in law that when construing a statute, the existing law is regarded as not having been altered unless the statute is clearly intended to alter that law. The view expressed in Van Heerden & Ors NNO v Queen’s Hotel (Pty) Ltd and Ors 1972 (2) RLR 472 (A); 1973 (2) SA 14 (RA) is that it is trite that the legislature must be presumed not to have intended to alter the law beyond the immediate scope and object of the statute concerned. Indeed courts of law lean against implying an alteration or repeal of one statute by another.

In that case the court cited the well-known statement by Lord Selbourne in the leading case of Seward v The Owner of the Vera Cruz (1884) 10 AC 59 at p 68:

“Now, if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specifically dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.”

See also Trust Insurance Brokers v Minister of Finance & Anor, 2008 (1) ZLR 318 (S).

It is in that light that the provisions of s 198 (4) giving only the Prosecutor-General the right to appeal with leave and not an accused person, should be considered. Sight must also not be lost of s 56 (1) of the Constitution providing for equality before the law and equal protection and benefit of the law. In addition, every person has a right of access to the courts for the resolution of any dispute in terms of s 69 (3) of the constitution.

Against that background, is the decision of this Court in S v Hunzvi, supra, which was made in chambers and in which GUBBAY CJ, made reference to a passage in his judgment in             S v Kachipare 1998 (2) ZLR 271 (S) at 279 C-D. The Chief Justice reiterated that s 44 (5) (a) of the High Court Act is of no application in an application of this nature since there is no right of appeal against the judgment of the High Court dismissing an application for discharge at the close of the prosecution case.

Mr Mpofu for the applicant submitted that as these authorities are of doubtful correctness it is the desire of the applicant to test their correctness at the Supreme Court. He submitted that bearing in mind that a refusal of an application for discharge is interlocutory in nature the proper construction of the law has to be that once jurisdiction is conferred by the High Court Act, which is the piece of legislation setting out the jurisdiction of that Court, there is no need for the Criminal Procedure and Evidence Act to repeat the conferment. There is no law preventing the High Court and the Supreme Court from granting leave to appeal.

I agree that where there is judicial uncertainty introduced by two positions which are both potentially correct, leave must be granted so that a seal of finality is put on the issue by the highest court of the land. Indeed, it is desirable that this be so. See Chikafu v Dodhill (Pvt) Ltd & Ors SC 28/09. Had it not been for what follows hereafter I would not have had any difficulty in opening the gateway for the applicant to test the correctness of the decision in S v Hunzvi in order to bring certainty and finality.

There is merit in the argument advanced for the applicant that in light of the provisions of s 56 (1) of the constitution providing for equality before the law and equal protection and benefit of the law as well as s 69 (3) providing for the right of access to the courts, an interpretation of the relevant statutes that upholds the constitutionally guaranteed rights must be adopted. This is more so regard being had that in our law, in construing the meaning of a statute a court should lean towards a construction that makes sense rather than that which does not, a construction that achieves justice rather than injustice.

In our law the principle expressed in the maxim ubi ius ibi remedium is salutary. It was expressed in Ashby v White 92 ER 126 at 136 (2) and explained as:

“If the plaintiff has a right he must of a necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy, want of a right and want of a remedy are reciprocal.”

I accept that, in principle, the applicant may be entitled to motivate the Supreme Court to depart from the authorities which have interpreted the statutes to deprive an accused person of the right to challenge a refusal of an application for discharge. That, however, is not the end of the matter. Before opening the gateway, I must be satisfied this is a case where leave to appeal should be granted and not just a case where the correctness of the authorities is to be tested. In other words, the applicant still has to satisfy me that his intended appeal enjoys prospects of success. There is no point in allowing the applicant to appeal if the intended appeal has no merit.

PATEL JA put it very succinctly in Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd & Ors SC 59/19 when he said:

“As for the requirement of leave to appeal to be obtained before the right to appeal can be exercised, this Court is vested with an essentially gatekeeping function, viz, to allow only cases that deserve to be heard on appeal to pass… What this entails is an evaluation of the grounds of appeal to be relied upon and their prospects of success at the intended appeal. See Chikurunhe and Ors v Zimbabwe Financial Holdings SC 10/09; Chipangura v Environmental Management Authority SC 35/12.”

What the court has regard to in an application for discharge at the end of the prosecution case is settled, having been expressed in a number of authorities and hallowed by repetition over a long period. The authorities that have interpreted s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07] in terms of which the application for discharge is made are clear that the trial court has no option but to discharge an accused person at the close of the case for the prosecution where there is no evidence to prove an essential element of the offence or where, there is no evidence on which a reasonable court, acting carefully, might properly convict. The court must also discharge where the evidence adduced on behalf of the prosecution is so manifestly unreliable that no reasonable court could safely act on it. See S v Kachipare 1998 (2) ZLR 271 (S) at 276 D-E; Attorney General v Tarwirei 1997 (1) ZLR  575 (S) at 576G. S v Tsvangirai and Ors 2003 (2) ZLR 88 (H).

I must tread carefully considering that this is a matter which is unterminated and in which the High Court still has to pronounce itself on the evidence placed before it. In fact, that is one reason why superior courts will not ordinarily sit in judgment over matters that are still before the lower courts except in very rare situations where a grave injustice would occur if the court does not intervene. Superior courts are always very slow to intervene in the unterminated proceedings of a lower court except in cases of gross irregularities in the proceedings or where it is apparent that justice might not be attained by other means. See Attorney General v Makamba 2005 (2) ZLR 54 (S) at 64 C. It is undesirable to express a view on unterminated proceedings and in the process interfere unduly with the judicial discretion of the lower court still seized with the matter.

Be that as it may and without expressing a view on the quality of the evidence that has so far been led before the High Court, it must be appreciated that, apart from the main charge of theft of gold, the applicant and his co-accused also face an alternative charge of defeating or obstructing the course of justice as defined in s 184 (1) (a) of the Criminal Law Code. The specific allegations are that he unlawfully caused judicial proceedings to be defeated or obstructed by, inter alia, facilitating the adducing of false evidence at the trial of his client. The High Court was satisfied that the evidence led on behalf of the prosecution established a prima facie case for the applicant to answer, including why he kept following Lovemore Sibanda to whom the gold had been given at Plumtree Court.

At this stage it is only the trial court which has had the benefit of assessing the evidence and it concluded that the applicant has something to explain having regard to the credibility of witnesses and other factual findings it made. I do not have the advantage the trial court has and cannot, in all fairness, interfere with the trial court’s judicial discretion in that regard. Indeed it is undesirable for me to delve into evidence which is still the subject of a trial before the lower court before the proceedings are terminated.

At this stage of the trial, the State is not required to prove its case beyond a reasonable doubt but merely to set out a prima facie case for the accused person to answer. It is appreciated that all the evidence against the applicant, apart from that of Sibanda, is of circumstantial nature. The question which arises, however, is whether the Supreme Court may find that the applicant has no case to answer were he to be granted leave to appeal. Even if one were to apply the test set out in S v Tengende and Ors 1981 ZLR 445 relied upon by Mr Mpofu, is it possible to grant the applicant leave to appeal?

In that case the court tried to reduce the burden resting on an applicant for leave to appeal considerably when it remarked:

“I prefer therefore to approach the matter by considering not how good the prospects must be before leave is granted but how poor they must be before leave is refused. And for this reason I think the test that has been mooted that the applicant must show reasonable prospects of success – put the matter too high, in my view leave appeal should be granted if the applicant makes out a reasonably arguable case.”

As I have said, the trial court has already made findings that the applicant has a case to answer. It should be allowed to complete its case. I am not satisfied that this is a case where a grave injustice will occur if there is no interference or where there is gross irregularity in the proceedings calling for interference. Indeed the applicant has not, in his papers, shown the existence of any grave injustice that may befall him were he to be placed on his defence.

It is for the foregoing reasons that I come to the conclusion that the applicant possesses no arguable case on appeal even when applying the S v Tengende and Ors, supra test. The gateway to the appeal court cannot be opened for him in the circumstances.

Accordingly, I make the following order;

The application for leave to appeal be and is hereby dismissed.

Rubaya & Chatambudza, applicants’ legal practitioners

National Prosecuting Authority, first respondents’ legal practitioners