This
is an application for review in terms of section 26 of the High Court
Act [Chapter 7:06] which confers general powers, jurisdiction and
authority on the High Court to review all proceedings and decisions
of all inferior courts of justice, tribunals and administrative
authorities in Zimbabwe.
The
application stems from the trial magistrate herein cited as the first
respondent's refusal to discharge and acquit the applicant at the
closure of the State case in terms of section
198(3)
of the Criminal Procedure and Evidence Act [Chapter 9:07]. The
section provides that:
“(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.”
The
background to the application is that the applicant was jointly
charged of fraud, as defined in section 136 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] together with his
erstwhile legal practitioner Norman Bvekwa. The first respondent
presided over the trial in his capacity as the trial magistrate
sitting at Harare.
The
factual basis upon which the application is founded is to a large
extent not in dispute. The undisputed facts are that the State
alleged that both accused persons fraudulently wrote a letter
containing falsehoods calculated to scuttle the intended sale of a
certain piece of land between the complainant company, Christmas Gift
(Pvt) Ltd, and the National Social Security Authority (NSSA). Both
accused admitted writing the letter as alleged by the State. The
letter, dated 16 October 2012, Annexure G…, reads:
“Dear
Sirs,
RE:
OUR CLIENT – W. E . NYAMBO. SHARES IN DMC HOLDINGS (PRIVATE)
LIMITED – NEW CHRISTMAS GIFT (PRIVATE) LIMITED
We
refer to the above matter and address you at the instance of our
client W.E. Nyambo.
We
understand that you want to purchase the above described property
from one Mr. De Sa, who claims to be the owner of the property.
This
property does not belong to him as our client is the 100% shareholder
in New Christmas Gift Investments (Private) Limited.
Attempts
to reach compromises between Mr. De sa and our client have yielded
nothing.
We
demand that you stop immediately any attempts to buy this property
through the said Mr. De sa.
Please
communicate this position to us.”
At
the close of the State case, Mr. Bvekwa, the applicant's lawyer,
was properly found not guilty and discharged on the basis that he
lacked the requisite mens
rea
to commit the offence in that he merely acted in his professional
capacity as the applicant's legal practitioner. In that capacity he
only acted as the applicant's mouth-piece without attracting any
civil or criminal liability to himself. That kind of reasoning is
unassailable and cannot be faulted at all.
The
trial magistrate, in a concise but well-reasoned and convincing
interim judgment, proceeded to determine that the applicant had a
case to answer because he was the principal and prime mover for the
writing of the offending letter. Evidence was led from various State
witnesses tending to establish that the letter written at the
applicant's instance and promptitude contained falsehoods and
deliberate misrepresentations calculated to prejudice the complainant
in its bid to sell its property to the National Social Security
Authority.
It
was Mr. Rogerio De Sa's testimony that he holds 99% shares in
Christmas Gift (Private) Limited and the remaining 1% share is held
by his wife. He authenticated his evidence by producing the relevant
documentation in the form of the company's CR14 showing the
company's directorship and title deeds of the disputed land as
proof of ownership. His evidence in this respect found ample
corroboration in the evidence of one of the company's directors,
Mr. Kizito Gweshe, in every material respect.
They
both disputed that the applicant was the owner of 100% shares in the
company in dispute. It is clear as daylight that the evidence of all
the State witnesses, if left un-rebutted, can only lead to one
inexorable conclusion; that the applicant's letter to the National
Social Security Authority (NSSA) was written and communicated with
fraudulent intent.
It
is an established rule of procedure in a criminal trial, consistent
with the audi
alteram
partem rule, that once the State has established a prima
facie
case pointing to the likelihood of the accused being guilty of the
offence charged, the onus shifts to the accused to rebut the
operation of the evidence led against him. When placed on his
defence, the accused is not being called upon to prove his innocence
but to rebut the operation of State evidence suggesting that he is
guilty of the offence charged.
The
trial magistrate was therefore correct in determining that the
applicant has a case to answer. His determination in this respect was
amply backed up by the available evidence at his disposal.
That
being the case, the applicant cannot seek refuge in the Constitution
or the High Court by way of a frivolous and vexatious application for
review. It is accordingly ordered:
1.
That the application be and is hereby dismissed.
2.
That the trial magistrate's ruling be and is hereby sustained.
