Court name
Harare High Court
Case number
HH 137 of 2004

S v Zvinavashe (HH 137 of 2004) [2004] ZWHHC 137 (06 July 2004);

Law report citations
Media neutral citation
[2004] ZWHHC 137

ELVIS ZVINAVASHE                                     Appellant

and

THE STATE                                                                Respondent

 

 

HIGH COURT OF ZIMBABWE

OMERJEE J AND BHUNU J

HARARE 8TH June and 7th July 2004

 

Criminal Appeal

 

 

Mr P. Kwenda, for the appellant

Mr V. Shava, for the respondent

 

 

            OMERJEE J :  The appellant who was an accounts clerk at the C.M.E.D was arraigned before the Regional Magistrates Court at Harare charged with the offence of contravening section 3(1)(a)(ii) of the Prevention of Corruption Act [Chapter 9:16] ("the Act").  The appellant who was unrepresented pleaded not guilty.  He was convicted as charged on the 14th February 2003 and was sentenced to 6 years imprisonment of which 2 years were suspended on the usual conditions related to good behaviour.  The allegations against the appellant were that in or about 1997 and in the course of his duties at the C.M.E.D. he unlawfully and corruptly accepted a Mazda B1800 motor vehicle from one Hativagone as an inducement or reward for processing vouchers relating to five entities or companies associated with Hativagone in respect of services or supplies that were not rendered to CMED.  The appeal is in respect of both conviction and sentence.  The appellant also contends that by reason of the alleged inordinate delay in the finalisation of his trial, his rights to a trial within a reasonable period of time as enshrined in section 18(2) of the Constitution of Zimbabwe were violated.  It is proposed to deal with the latter issue after a consideration of the evidence adduced at the trial.

            From the evidence led the following factors are either common or are not in serious dispute namely:

  1. That at the relevant and material time the appellant was employed as an accounts clerk at CMED.
  2. He was familiar with creditors of the CMED.
  3. In the course of his duties he dealt with claims for payment emanating from the following entities namely Mariwebb Services, Asham Auto Electric, Broomfleet Services, Duncliff Engineering and Cradley Services, belonging to or associated with one Hativagone.
  4. The appellant was responsible for processing payment vouchers and was answerable to one Jiriengwa.
  5. As a result of an audit exercise it was discovered that purchasing to best advantage was not being adhered to within CMED.

 

The appellant and his superior were suspended following an audit exercise undertaken.  The appellant disclosed to the auditors that he had been handed vouchers pertaining to the five companies aforementioned by Jiriengwa.  The appellant admitted in evidence that he handed the same to Sihlahla and Nhengu.  Further enquiries revealed that four of the companies had the same postal address and two companies namely Broomfleet and Asham Motors had as directors person named as Wellborn and Mary Hativagone respectively.  The evidence on record demonstrates quite clearly that five cheques had been improperly processed.  The amounts paid were in respect of either inflated claims or fictitious claims for goods and/or services allegedly provided to the CMED by Hativagone's companies.

The State produced in evidence a warned and cautioned statement made by the appellant.  For his part, the appellant claimed that he was induced to implicate himself not through pressure brought to bear upon him, but because he was advised by the police that he was to be called as a State witness.  A careful reading of the evidence reveals that the prosecution on whom the onus rests to prove the admissibility of this statement, did not discharge that onus beyond a reasonable doubt.

From the totality of the evidence led, the following was established:

  1. The appellant was an accounts clerk at the CMED and thus an agent.
  2. His duties included processing payment vouchers.
  3. A Mazda B1800 truck registration number 391-222 Q was registered in the appellants name - its previous owner being Zimtiles Private Limited.  There is evidence in the form of a receipt Exhibit thirteen that establishes that on the 20th November 1997 Goldline Car Sales were paid the sum of $41 000 by Hativagone in respect of the purchase of a Mazda B1800.  There is evidence that on the same date the appellant applied to register the change of ownership of a Mazda B1800 registration number 391-222Q in his name from the previous owner Zimtiles Private Limited.  The appellant claimed to have bought the said motor vehicle from Goldline Car Sales.  The appellant did not disclose how much he had paid for the vehicle.  Furthermore, he did not produce any proof regarding payment made by him in respect of the purchase of the said vehicle.

 

The State did not lead evidence as to the registration number of the Mazda B1800 bought by Hativagone.  There is no explanation for the omission on the part of the State to lead evidence in this important respect.  The failure to do so, creates a difficulty on the part of the State in supporting the conviction of the appellant on the offence charged.   Such evidence was crucial to the proof of the State's case and was available.  The manner in which this matter was prosecuted is regrettable.  It was characterised by ineptitude and laxity on the part of the State.

 

The appellant admitted that he had been given the vouchers relating to the five companies by Jiriengwa in order to take them to the bank.  The vouchers in question were then handed to Sihlahla and Nengu by the appellant.  It is inconceivable that  Jiriengwa would have entrusted the appellant with the task of causing the disappearance of these documents unless the appellant was acting  in concert with Jiriengwa and others.  The appellant must have been told by Jiriengwa as to why the documents were being made to vanish.  There is evidence on record of inflated payments or payments in respect of fictitious claims lodged by Hativagone, arising from the same vouchers.

Hativagone's five companies were the beneficiaries of payment claims submitted to CMED in circumstances where no supplies or services as claimed had been rendered.  Section 4(a) of the Act provides that if a public officer, in the course of his employment does anything that is contrary to or is inconsistent with his duty as a public officer for the purposes of showing favour … to any person he shall be guilty of an offence …"

 

The facts reveal that the appellant as a public officer in the course of his employment and in breach of his duty, did something which objectively considered, shows favour to another.  Section 5 of the Act provides that where a person is charged with contravening section 3 of the Act, it would be competent to find such person guilty of contravening section 4, if such are the facts proved.  The court finds that the conduct of the appellant is such as to come within the terms of section 4 of the Act.

 

In State v Chogugudza 1996(1)ZLR 28-35(s) at 42 D-E GUBBAY C.J. with characteristic lucidity stated as follows at page 42 D-E:

"The actus reus of the offence of contravening s 4(a) of the Prevention of Corruption Act having been proved by the State, it was for the appellant to displace the presumption by satisfying the trial court that his purpose of showing favour was legitimate - that in doing what he did, he had acted with an innocent state of mind.  It was not for him to establish that his evidence  on this aspect was necessarily true - only that on a preponderance of probabilities it was true.  See S v Ndlovu 1983(4) SA 507 (ZS) at 510D-G; Miller v Minister of pensions [1947]2 All ER 372 (KBD) at 374A-B."

 

 

            The State established the actus reus of section 4(a) of the Act.  There is no explanation on record for the conduct of the appellant. This court is satisfied beyond a reasonable doubt that the appellant in doing what he did, had not acted with an innocent state of mind.  In the view of the court the appellant failed to discharge the burden imposed upon him by s.15(2)(e) of the Act. The appellant was generally not a satisfactory witness and his testimony was lacking in candour.  His wanton dereliction of duty was not a fortuitous event.

            In the result this court finds the appellant guilty of contravening section 4(a) and not guilty of contravening section 3(1)(a)(ii) of the Act.  The conviction of the appellant is altered accordingly.

 

The Constitutional Issue

Counsel for the appellant submits that there has been an inordinate delay in the finalisation of the appellant's trial.  He contends that as a consequence thereof there has been a violation of the appellants rights as contained in section 18(2) of the Constitution of Zimbabwe - the right to a trial within a reasonable period of time.

The offence was allegedly committed in or about November 1997.  From information made available to the court upon the request it emerged that  the appellant appeared in court for purposes of initial remand on 6th July 1998.  He pleaded guilty to the charges and was duly convicted.  He was remanded in custody.  His case was referred to the High Court for sentence.  The High Court quashed the proceedings on the grounds inter alia that the appellant's mental status had not been sufficiently investigated at the trial stage.  His case was referred back to the Magistrates Court for purposes of trial de novo.  He was released on bail on the 4th of October 1998.  That trial, the subject of the present appeal, commenced on the 10th October 2002.

For the purpose of completeness it is perhaps necessary to make reference in passing, to the issue regarding  the appellant's mental state.  The appellant was examined by two medical practitioners in September 1998.  One doctor concluded that the appellant was not mentally ill, whilst the other concluded that he was not certifiable.  The second trial commenced some four years later.  At the trial, the appellant did not raise any issue regarding his mental condition.  A reading of the record does not  reveal that the appellant who conducted his  own defence, was labouring under any mental disability.

The second trial commenced on the 10th October 2002, a period of five years after the alleged commission of the offence.  The appellant was convicted and sentenced on the 14thFebruary 2003 - a period of 5 years 4½ months after the alleged commission of the offence.  The appellant was undefended at the trial before the magistrate.  He did not raise at the trial stage the factor of delay in the finalisation of his case.  Counsel for the appellant places reliance on the case of S v Kusangaya 1998(2) ZLR 10 (H).  In this regard, it is instructive to recall what DEVITTIE J with the concurrence of MUNGWIRA J stated in Kusangaya (Supra) at page 16C-F :

            "I propose therefore to suggest how magistrates may intervene mero motu

with a view to ensuring that effective remedies are afforded.  Cases where constitutional rights are implicated on account of delay in bringing an accused to trial will ordinarily come before a magistrate in the following way: where an accused appears on remand; where he has pleaded but the conclusion of the trial has been unduly delayed; and the third situation that arises is where an accused is brought for trial, on a plea of guilty or of not guilty in circumstances where the delay is inordinate and constitutes a breach of his rights.  The duty of the trial magistrate in all these instances, if he considers that the delay may be such as to constitute a violation of the accused's rights, is to explain the accused's constitutional rights.  If the accused elects to invoke his rights, then the duty of the magistrate is to elicit the relevant facts from the accused and to refer the matter to the Attorney-General for the institution of appropriate proceedings before the Supreme Court to have a stay of prosecution granted, if it be merited.  A magistrate's court has no jurisdiction to grant a stay of prosecution."

 

Furthermore, it is clear on the authority of the Kusangaya case (supra), that this court has the jurisdiction to entertain the appeal as a constitutional issue consequent upon the exercise of its inherent review jurisdiction.  This court will adopt such approach in the determination of the constitutional issue raised.

It is apparent from the record of proceedings that the reasons for the delay were not attributable as to the appellant.  The appellant specialised in financial matters.  As a layperson he was not sufficiently enlightened as to appreciate the effect and legal consequences of any delay in finalising his trial.  He was not defended at his trial that involved a charge which was clearly of a serious nature.  His trial commenced five years after the alleged commission of the offence.  In our view the fact that the accused had not complained of the delay at the trial stage ought not to be held against him.  It is also clear that the trial magistrate had not afforded the appellant an explanation of his rights as should have happened in the particular circumstances of this matter.  Several witnesses who ought to have been called did not testify.  A Mr Manyanga, a state witness, had died by the time the trial commenced.  In this regard it is appropriate to make reference to the sentiments expressed by GILLESPIE J in S v Mavharamu 1998(2) ZLR 341(H) at 347 A-E where he stated:

"The question therefore is whether the accused's undeniable failure to assert his rights at any time can justify excluding from consideration the manifest  delays that have occurred.

 

I acknowledge not only the binding nature but also the persuasive force of this, and other pronouncements, on the duty to stand up for oneself.  I would nevertheless suggest that there is a real and necessary point of distinction between the class of cases that would and do justify the remarks cited above, and the present.  This is a matter involving a person with no recourse to legal representation.  One who has no learning or knowledge of the law.  He has no obvious education on his rights.  He had no legal assistance at any stage.  His only knowledge of the law must have been that it is, to all, intents and purposes, overwhelming in its might and intractable in its exigencies.

 

The duty of the administration of justice towards the unrepresented accused is taken very seriously by this court.  It may be that in a jurisdiction with a burgeoning population of legal practitioners and generous budgets for public defenders, or for work pro bono publico, a more demanding view can be taken of a duty to assert one's own rights.  As I have elsewhere suggested, however, it would be most inappropriate to hold against an unrepresented accused failure to take assiduous steps to enforce his freedom.  Such an one relies for his protection upon the court itself."

 

The view of this court is that there was an inordinate delay in bringing this case to trial.  Such delay resulted in a breach of the appellants rights as enshrined in section 18(2) of the Constitution.  The appellant suffered prejudice in consequence thereof. The next stage of the enquiry is to determine the appropriate remedy to be granted where the trial, albeit delayed inordinately, has been finalised.  In the view of this court the sentence to be imposed must be altered in the light of the inordinate delay that has occurred in the finalisation of the trial.

Ordinarily speaking a permanent stay of proceedings would be the minimum remedy.    See In re Mlambo 1991(2) ZLR 339(S).  However in the present matter as proceedings have been finalised, it would not be appropriate to grant a stay of proceedings.  In the view of this court any sentence to be imposed must be ameliorated by the inordinate delay that has occurred in the finalisation of this case.  The appellant is forty two years of age and is unemployed.  Had his trial been finalised within two years of the date of his arrest, he would have completed serving any custodial sentence imposed upon him.  He has had to endure mental anguish and anxiety for a period of seven years.  He is unemployed.

The offence of which the appellant stands convicted, it goes without saying, is serious.  Cases involving corruption are generally sternly dealt with by the courts.  Corruption in a public department undermines public confidence in the integrity of public officials.  The courts impose suitably severe sentences in such cases.  However given the inordinate delay in the finalisation of this case, it is clear that the courts have a duty and an obligation to guard against the infringement of an accused persons rights under Section 18(2) of the Constitution.

The State has conceded that to impose a custodial sentence on the appellant at this stage, would not be in the interests of justice.  The concession is both a fair and proper stance on the part of the State.  The lengthy delay militates against the imposition of an effective term of incarceration.  It is appropriate to make reference to what was stated by CHINHENGO J in S v Taenda 2000(2) ZLR 394 at 404 A-B:

"I believe, a remedy which will bring home to administrators of the criminal justice system that the courts will not stand idly by when individual rights enshrined in the Constitution are trampled upon because of inexcusable systemic inefficiencies.  It is a remedy that assures accused persons that, despite their transgressions, the court will act to protect them when occasion demands."

 

Despite several requests to the appellant's legal practitioner to provide information as to the appellant's present physical address and an undertaking by the legal practitioner that he would do so, the latter has not been able to provide the appellant's present address.  The appellant's last known address is 4352, New Tafara, Mabvuku.

 

In the result the sentence imposed by the trial court for the abovementioned reasons is set aside. The appellant is sentenced to three years imprisonment of which -

 

(a)        Two years imprisonment are suspended for five years on condition that the appellant does not within that period commit any offence involving a contravention of section 3 or section 4 of the Prevention of Corruption Act or any offence  involving bribery or corruption and for which upon conviction he is sentence to imprisonment without the option of a fine.

           

  1. The remaining 12 months imprisonment is suspended on condition that the appellant completes 420 hours community service the place at which and the period within which it is to be performed will be fixed by the court.  The appellant is directed to report to the community service officer at Harare Magistrates Court, within 7 days of the date of this judgement.  The officer shall prepare a report as to the eligibility of the appellant for the performance of community service including the period and duration over which community service is to be performed.  This information is to be provided to the Registrar of the High Court by not later than close of business on 21st July, 2004.

 

This matter is postponed to Friday 23rd July 2004 at 9.00 a.m. in regard to finalising the issuance of the order of community service.

 

 

 

 

 

BHUNU J agrees:…………….

 

 

 

 

Kwenda and Associates, legal practitioners for the appellant

Attorney-Generals Office, legal practitioners for respondent