John Mambeu v The State

### Preamble
Judgment No. SC 121/20
1
Civil Appeal No. SC 372/18
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REPORTABLE    (114)

JOHN     MAMBEU

v

THE     STATE

SUPREME COURT OF ZIMBABWE

MAKARAU JA, MAVANGIRA JA & BERE JA

HARARE: 18 JULY 2019 & 1 OCTOBER 2020

A. Mavhiringidze, for appellant

L. Sobha, M. Mahuni & T. Sibanda, for respondent.

BERE JA:  This is an appeal against the judgment of the Court Martial handed down on 19 April 2018, finding the appellant guilty of three counts of fraud in contravention of para 39 (2)(a) of the First Schedule to the Defence Act, [Chapter 11.02] as read with s 136 (a) of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. The court a quo found that between 11 December 2013 and 11 February 2014, the appellant caused deductions of US$2-00 from each of a number of members of the Zimbabwe Defence Forces and deposited the money into accounts from which he made several withdrawals, causing actual and potential prejudice to the affected members. Following conviction, the appellant was sentenced to cashiering from the Zimbabwe Defence Forces with effect from 1 August 2017 and to twelve years imprisonment, two of which were suspended on condition the appellant paid restitution to the Zimbabwe National Army in the sum of US$12 992- 00.

Dissatisfied with both the conviction and the sentence, the appellant noted this appeal, raising nine grounds of appeal. In essence, the nine grounds raise three issues.  Firstly, the appellant attacked the jurisdiction of the court a quo to try him. Secondly, he attacked the cogency of the evidence upon which he was convicted and finally he attacked the severity of the sentence imposed following his conviction. Thus, the three issues that arise in this appeal for our determination are firstly whether the court a quo had jurisdiction to try the matter. If the court had the requisite jurisdiction, then the second issue is whether the evidence tendered before it was sufficient to convict the appellant on the charges he was facing and finally, whether the sentence meted out to the appellant is so severe as to induce a sense of shock.

Background Facts

The appellant was a Captain in the Zimbabwe Defence Forces, holding the post of Officer Commanding Data Base Administration (“OC DBA”), in the Information Technology Directorate. In his capacity as OC DBA, he was in charge of compiling the electronic salary schedules of members of the Defence Forces  on disc, for onwards transmission to the relevant banks for processing.

In December 2013, US$2-00 each was deducted from 6 380 members of the Zimbabwe National Army who held accounts with the Central Africa Building Society, (“CABS”), and into which their salaries were deposited. The total amount thus deducted, in the sum of US$12 760-00, was deposited into the appellant’s account with the same bank. On the payroll, the amount was credited to a fictitious soldier by the name Numbeni. The appellant later withdrew the total sum of US$ 12 760-00 on several occasions.

In February 2014, again a deduction of US$2-00 each was made against 6 515 members of the Zimbabwe National Army who had their salaries deposited into accounts with CABS. The total amount of US$13 032 -00 thus deducted was deposited into the appellant’s account with the same bank, whilst on the payroll, it was credited to one Lt Col D Charasikwa, who at the time was not entitled to a salary, his contract of employment having run out.  Appellant subsequently withdrew the total amount from his account.

During the same month of February 2014, a similar deduction of US$2-00 was made from the salaries of 5 807 members of the Zimbabwe National Army who accessed their salaries through CBZ. On the payroll, the total amount of US$11 614-00 thus deducted was credited to a “deserter” one Captain T Danda who was not entitled to a salary, before it was deposited into the appellant’s account with the same bank. Upon discovery of the offence, the total amount was returned to the Zimbabwe National Army.

The offences were discovered when there were numerous queries by a number of affected members to the pay office on the discrepancies between their payslips and the bank deposits. The discrepancy was always US$2-00 per every affected member. This led to a verification exercise within the entire system, leading to the arrest of the appellant on or about 14 February 2014.

The record of the proceedings a quo indicates that the appellant made his first appearance before the court a quo on 25 October 2016. It is not clear why he was not brought to trial sooner. He was not asked to plead and the matter was postponed by consent to 24 November 2016. At the resumed sitting of the court, the appellant was not in attendance. His legal practitioner informed the court that he was hospitalised in Chitungwiza after falling and sustaining a dislocated hip. Arrangements were immediately made for the appellant to be transferred from Chitungwiza Hospital to 2 Medical Hospital which is a Military Institution.

On 28 November 2016, the court a quo relocated to 2 Medical Hospital to record a plea from the appellant who was still admitted at the hospital. Pleas of not guilty to all the three counts were entered for and on behalf of the appellant.

At the resumed sitting of the court on 27 February 2017, the appellant filed a defence outline in which he once again pleaded not guilty to all the charges and at the same time excepted to the jurisdiction of the court a quo on the basis that three years had lapsed from the date of the commission of the offence to the date of the commencement of the trial. He specifically challenged as a nullity, the proceedings held at 2 Med Hospital and during which pleas of not guilty were entered in respect of all the three counts.

The court a quo dismissed the exception and a further application that the appellant made to have the proceedings against him permanently stayed for violating his right to a fair trial. It ordered the trial to proceed on the basis of the plea recorded at 2 Med Hospital. At the conclusion of the trial, it convicted the appellant and sentenced him as detailed above.

The appeal

As indicated above, the appeal raises three issues. The first is whether or not the court a quo had jurisdiction to try the appellant. In view of its nature, going to the root of the conviction and sentence imposed on the appellant as it does, it stands to reason that I deal with this issue first.

The appellant alleges with the respondent denying, that at the time of the trial of the matter, he had attained the age of fifty five, which is his retirement age.  It was thus contended on his behalf that at the time of his conviction and sentence, he had ceased to be a member of the Zimbabwe Defence Forces.

The appellant did not raise this allegation before the court a quo, seeking to raise it for the first time on appeal.  This is not a legal point but a factual allegation.  Evidence of when the appellant attained the requisite retirement age does not appear in the record of the proceedings a quo. Counsel for the appellant sought to lead evidence in this regard in his heads of argument by giving details of when the appellant’s contract of employment was hit by the run out date.

The trite position at law is that this Court, as an appellate court, is confined to the four corners of the record of the proceedings in the lower tribunal. It is therefore impermissible for the appellant to allege and at the same time seek in his heads of argument to allege and prove facts that were not placed before the court a quo.

The first basis upon which the appellant challenged the jurisdiction of the court a quo is therefore improperly raised and cannot succeed. It is accordingly dismissed.

I turn to the second basis upon which the appellant contended that the court a quo lacked jurisdiction. I start by citing in full the ground of appeal raised by the appellant in this regard. It reads:

“The court a quo erred in law by dismissing a special plea that the matter had prescribed since the trial started after the requisite three years had lapsed and it further erred by recognising a bedside recording of plea which was unlawful and wrongful.”

The Law

A global perception of this case suggests to me that ss 46(4) and 51 of the Defence Act are central to this appeal.  For the record the sections in question are framed as follows:

Section 46(4) of the Defence Act provides:

“Subject to subsection (2), no member shall be tried by a military court for an offence in terms of this Act, other than an offence-

Which, on conviction, renders the accused liable to be sentenced to death;

In terms of subparagraph (1) of paragraph 15 of the First Schedule; or

In terms of subparagraph (a) of subparagraph (2) of paragraph 15 of the First Schedule; unless the trial is commenced within three years after the date of the commission of the offence.” (The emphasis is mine).

“51	PLACE OF SITTING OF COURT MARTIAL AND ADJOURNMENTS

Subject to this section, a court martial shall sit at such place or places, whether inside or outside the limits of the command of the convening officer, as may be specified in the order convening the court.

A court martial sitting at any place may, if it appears to the court requisite in the interests of justice to do so, adjourn for purposes of sitting at some other place” (my emphasis)

The legal position that arises from the above sections was aptly and correctly summarised by the Judge Advocate in his address to the court a quo during the recording of the plea at 2 Med Hospital as follows:

“As you have heard from the State herein represented by the prosecutor, this case should have been tried long back because the charges that the accused person is facing date back to as far as 2013 and in terms of the Defence Act [Chapter 11.02], section 46, which relates to jurisdiction of Military Courts, a Military Court only has jurisdiction upon an accused person who is a member of the Defence Forces when the offence was committed within a period of three years. If three years lapse from the date of the commission, then this Court automatically loses to have jurisdiction to try the accused person.”

It was with the full knowledge of the limitations placed upon the jurisdiction of the court a quo by the above law that the respondent requested the court a quo to arrest the setting in of prescription by commencing the trial of the matter on 28 November 2016 at 2 Med Hospital. The issue that now falls for determination is whether the proceedings at 2 Med Hospital were valid and marked the commencement of the trial of the appellant.

Analysis

The proceedings that were conducted at 2 Med Hospital have been attacked on the following basis:

That there was no order convening the sitting of the court a quo at 2 Med Hospital;

That the proceedings in the hospital were not in “a court “that was open to the public;

That the appellant was not conscious when the plea was recorded from him;

That the appellant had not been furnished with the charge sheet before he was asked to plead to the charges; and

That the appellant was not represented during the proceedings.

It is common cause that the order convening the court a quo did not include the sitting of the court at 2 Med Hospital. The court was convened to sit at 1 Commando Regiment. The sitting at 2 Med Hospital was an emergency necessitated by the imminent setting in of prescription in or about December 2016. It is further common cause that on the report of the Zimbabwe Defence Forces’ doctors, the appellant could not be moved from the hospital to the court venue due to his injury and the pain he was under.

At the hearing of the appeal, counsel for the respondent in his submissions conceded that the sitting at 2 Med Hospital was not covered by the convening order. He sought to argue that the irregularity did not vitiate the proceedings. I entirely agree with counsel’s well thought submissions for the reasons that I lay hereunder.

A proper reading of the record of proceedings shows that after investigations had been completed, the appellant was given both the charge sheet and the summary of evidence (SOE), as far back as 2014. The issue as to whether or not the state papers were given to the appellant was a live one when the appellant appeared in the court a quo for the hearing of his case which culminated in his conviction.  The court a quo made a specific finding that the appellant had been given his state papers but had given them to the adjutant.

It is common cause that up until his trial was eventually heard and completed, the appellant had engaged two or three different legal practitioners commencing with a legal practitioner from Messrs Macharaga and Mugiya Law Chambers and ending with his current legal practitioner from Messrs Mavhiringidze and Mazhanyare Legal Practitioners.  This was given and accepted by the court a quo as a possible explanation why the appellant did not have the court papers at the time that signified the commencement of his trial on 28 November 2016 (the hospital plea).

It is also clear from the record of proceedings that commencing in 2014, each time the appellant’s case was set down for hearing, he would mount one application after the other in the High Court, the majority of which were never pursued to finality.  The court a quo formulated the opinion that the cumulative effect of the conduct of the appellant was meant to subvert a smooth commencement of the trial against him.  The court concluded that the appellant had not been cooperative for purposes of having his trial started.

As part of his main contention on appeal appellant’s counsel sought to argue that because the plea by the appellant of 28 November 2016 was recorded at a place not specified in the convening order, therefore those proceedings were null and void.  By so arguing appellant’s counsel clearly opted for a strict and literal interpretation of that section and the consequences of such an interpretation, if accepted would mean that the trial of the appellant was commenced after the prescriptive period of three years spoken to by s 46(4) of the Defence Act.

I am more than satisfied that such an interpretation if accepted would create an unwarranted absurdity given the perculiar circumstances of this case as I will demonstrate in this judgment.  It is imperative to restate what s 51 of the Defence Act states.  The section is framed as follows:

“51 PLACE OF SITTING OF COURTS MARTIAL AND ADJOURNMENTS

Subject to this section, a court martial shall sit at such place or places, whether inside or outside the limits of the command of the convening officer, as may be specified in the order convening the court.

A court martial sitting at any place may, if it appears to the court requisite in the interests of justice to do so, adjourn for purposes of sitting at some other place” (my emphasis)

In dealing with the interpretation of s 51 of the Act I note that the consistent use of the word ‘may’ in both subsections of the Act is quite significant and should be paid attention to.  This word was not accidentally slotted into the statute.  I read that to mean that the court a quo was given some discretion “if it appears to the court requisite in the interests of justice to do so”, to sit at some other place, not specified by the command of the convening officer.  The justification for such change of venue would be the exigencies of the situation or the interests of justice.

I am guided by the golden rule of interpretation of statutes which commands us to abandon the literal rule of interpretation where that interpretation creates an absurdity.  As McNally JA crisply put it in S v Kachipare

“I take the view that one is entitled to look closely at the wording of the section in order to find an interpretation which achieves sense rather than nonsense, justice, rather than injustice, in the application of the section in a situation almost certainly not contemplated by the legislative.  This must especially be so in a statute which deals with procedure rather than with substantive law.

…… See also the remarks of GRIFFITHS CJ in R v Deputy Governor of Camphill Prison, ex p King (1984) 3 ALL ER 97 at 903:

“The common law of England has not always developed on strictly logical lines, and where logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society.”

Whereas here, we are dealing with procedure rather than substantive law, I would prefer to avoid the strictly logical path in favour of a pragmatic or expedient interpretation if that is possible.”

In Coopers & Lybrand & Others v Bryant the Court held among others as follows:

“… According to the golden rule of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument.”

The same sentiments were echoed in Chegutu Municipality v Manyora where the court said that:

“There is no magic about interpretation.  Words must be taken in their context.  The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Pearson (1857) 10 ER 1216 at 1234, “unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.”

Finally, in Capital Radio P/L v Broadcasting Authority of Zimbabwe the court held that:

“It is trite that in interpreting statutes, including the Constitution, the golden rule is that in order to ascertain the intention of the Legislature, the words of a statute or legislation are to be given their ordinary or primary meaning.  It is only where that primary meaning of words is obscure or leads to absurdity that other principles of interpretation are invoked in the ascertainment of the intention of the legislature.”

Among the specific findings of the court a quo was that from the very beginning the appellant exhibited a stout determination to avoid his trial.  The court a quo concluded that the appellant was uncooperative and wanted his case to be affected by prescription.  The court a quo, fully conscious of this maneuver by the appellant, sought to arrest prescription by recording the appellant’s plea at 2 Med Hospital on 28 November 2016.

The appellant’s counsel also argued that the appellant was unconscious when the plea was recorded from him, that the appellant had not been furnished with the charge sheet before he was asked to plead to it, and that the appellant was not legally represented at the time.

Per contra, respondent argued that everything that was done at 2 Med Hospital was done in accordance with the law.

I have already indicated that in my view and in light of the authorities cited and given the general attitude of the appellant as noted by the court a quo, the interests of justice demanded that the trial venue be relocated to 2 Med Hospital on 28 November 2016, thereby signaling the commencement of the appellant’s trial.

The change of venue is not peculiar to this jurisdiction.  In recent years the United Nations Appeals Tribunal has had to deal with similar matters where some cases which had been set down for hearing in New York, for example, were transferred to Geneva.  See Bastet v Secretary-General of the United Nations. In Ladu v Secretary-General of the United Nations the venue was changed from New York to Nairobi.  In both these cases the tribunal was held to have wide discretion, guided by the interests of justice to change the venue for such hearings. There was no prejudice found to have been suffered by the applicants.

I read the provisions of s 51 of the Act to give the court a quo discretion to change the venue where the interests of justice demands. The interest of justice in this case was to arrest prescription and in my view the court a quo must be applauded for having commenced the trial before the case had prescribed.  I am also of the firm view that where the change of venue has been effected as in this case, it is not sufficient for the appellant to merely allege that 2 Med Hospital was not an appropriate place for commencing his trial but that he suffered some form of prejudice as a result of the change of venue. I have already stated that the wording of the section under review allows for a pragmatic or expedient interpretation.

Earlier in this judgment, I explained that the appellant was made aware of his charges and furnished with the summary of evidence as far back as 2014 when investigations into his fraudulent conduct were completed.  There was a specific finding made to this effect by the court a quo.  If this is the position, there can be no argument that when the hospital plea was recorded, the appellant was not aware of the allegations which he was facing.

I now turn to deal with the appellant’s alleged unconscious state at the time of plea recording.  In my view the medical condition of the appellant has been blown out of proportion in order to advance his long cherished desire to abort his trial based on prescription.  The court a quo made it abundantly clear in the record of proceedings that before the appellant’s plea was recorded it sought guidance from a government medical practitioner who certified the appellant to be fit to stand that initial hearing. There is evidence on record that the appellant was feigning unconsciousness to deflate the hearing process.  In the light of the certification by the government medical practitioner that the appellant was fit to stand trial, the court concluded that the appellant was malingering to avoid his trial.  The respondent’s counsel makes this point in his filed heads of argument.  It is significant to note that other than the appellant being certified fit to stand trial, there is no any other medical report that was filed to show that the appellant was not in a position to follow the proceedings of 28 November 2016. I have not the slightest hesitation to conclude that the trial of the appellant commenced on this date and that prescription did not arise.  The court a quo therefore had jurisdiction to hear the appellant’s trial.

As regards legal representation, the record is clear that the appellant’s counsel was made aware of the proceedings of 28 November 2016.  Counsel decided to absent herself because she erroneously thought that that hearing was improper.  I sincerely believe she was not conspiring with the appellant to deflate a legitimate judicial process.

It is for these reasons that I would respectfully dismiss the appellant’s appeal on jurisdiction.

I now deal with the cogency or otherwise of the evidence upon which the appellant was convicted by the court a quo.

As already explained, when the appellant was arraigned before the court a quo he was charged with three counts of fraud.  The appellant denied all the three counts. However, at the conclusion of the trial the court a quo, in a well reasoned judgment found the appellant guilty of all the three counts.

The court a quo, having considered the viva voce evidence and the documentary exhibits tendered concluded that the totality of the evidence pointed to the appellant’s guilt.  The court reasoned inter alia that the “issue of creating a fictitious soldier Numbeni, as well as using the particulars of an officer who had been affected by a run out date, that is, Lieutenant D Charasika, and also the issue of using the particulars of Captain Danda who is a deserter, all shows that there was an intention to deceive.”

The court zero in on the appellant having authored this offence by taking advantage of his position as the officer commanding data base administration at the material rime.  More importantly, the court a quo noted to the satisfaction of the appeal court that the appellant, as the custodian of the master profile was the only person who had the power to interfer with the pay schedules of his fellow army officers to their financial prejudice.

The court a quo, for very good reasons threw away the appellant’s lame explanation that he thought his enemies had planted the evidence on him by transferring the various sums into his bank account, money which he blindly withdrew and converted to his own use without making any effort to verify its origins.

On appeal we were not persuaded to find any fault in the sound reasoning of the court a quo.  I may hasten to add that when we discussed the evidence on merits, all the three of us were left in no doubt that the state case was unassailable.

In short, the attack on the appellant’s conviction was not sustainable.

On the question of sentence, given the manner in which the offences were committed and taking into account the reasons given by the court a quo in support of such a sentence I am more than satisfied that the sentence was appropriate in the circumstances.

Before I conclude this judgment I wish to note that when one takes a global view of this whole case, starting with the manner in which these offences were committed, the determination which the appellant exhibited in trying to frustrate his prosecution as shown by the court a quo and the overwhelming evidence which was against the appellant, it would in my view be both absurd and ironic to uphold the appeal.  Doing so would be rewarding the appellant for his deceptive and fraudulent conduct much to the utter disgust of those thousands of fellow army officers whom he defrauded of their salaries.  This would create an absurd situation.  My view is that the appeal court or any other court for that matter must avoid flirting with controversy, otherwise the ordinary affected complainant or victim may not quite understand the whole criminal justice system in this country.

There is very strong persuasion that s 51 of the Act needed to be interpreted in a manner that did not create an absurdity or the “nonsense” that McNally JA had in mind in the case of S v Kachipare (supra).

Disposition

In the final analysis I am more inclined to dismiss the appellant’s appeal in its entirety.

Consequently I make the following order:

IT IS ORDERED:

That the appeal be and is hereby dismissed in its entirety.

MAKARAU JA		I agree

MAVANGIRA JA		I agree

Mavhiringidze and Mashanyare, appellant’s legal practitioners.

Defence Legal Service, respondent’s legal counsel.