Court name
Supreme Court of Zimbabwe
Case number
SC 11 of 2004
Crim. Application 44 of 2004

S v Makamba (44/04) (SC 11 of 2004, Crim. Application 44 of 2004) [2004] ZWSC 11 (25 February 2004);

Law report citations
Media neutral citation
[2004] ZWSC 11







REPORTABLE (8)


Judgment
No. SC 11/04


Crim.
Application No. 44/04








JAMES
MAKAMBA v THE STATE








SUPREME
COURT OF ZIMBABWE


HARARE,
FEBRUARY, 23, 24 & 26, 2004








S
Moyo
, for the
appellant





V
Shava
, for the
respondent





Before:
ZIYAMBI JA, In Chambers, in terms of Rule 5 of the Supreme Court
(Bail) Rules





This
is an appeal against an order of the High Court refusing bail to the
appellant. On 14 February 2004 the appellant appeared
before a
magistrate on allegations of contravening s 5 of the Exchange Control
Act [
Chapter 22:05],
as read with ss 4(1)(a)(i) and 11(1)(a) of the Exchange Control
Regulations, SI 109 of 1996 ("the Regulations"). It
was
alleged that on eleven occasions he sold foreign currency to Telecel
Zimbabwe. In his capacity as director of Telecel Zimbabwe
he is
alleged to have issued cheques for payment of foreign currency
purchased from persons who were not registered dealers. Neither
the
appellant nor Telecel are registered foreign currency dealers. The
appellant is also alleged to have opened a foreign currency
account
in Sandton, Johannesburg, South Africa without the requisite exchange
control authority and to have illegally exported maize
to South
Africa and caused the proceeds of the sale to be banked in a Telecel
Zimbabwe Limited foreign currency account in Luxembourg.











The
learned magistrate before whom the appellant appeared placed him on
remand but declined jurisdiction to grant bail to him because
of the
provisions of the Presidential Powers (Temporary Measures) (Amendment
of Criminal Procedure and Evidence Act) Regulations,
Statutory
Instrument 37 of 2004 ("the Amendment Regulations"), which
she felt prohibited her from doing so. By then the
appellant had
been in police custody for six days, having been arrested on 8
February 2004.





On
or about 15 February 2004 (the date is not clear on the record) the
appellant made an urgent application for bail to the High
Court.
Before the learned judge the argument for the appellant was that,
firstly, the State had not alleged that the appellant
might abscond
or interfere with witnesses. There was, therefore, no ground for
refusing bail. Secondly, the appellant had not
been placed on
remand in terms of s 32 of the Criminal Procedure and Evidence Act
[
Chapter 9:07]
("the Act"), but pursuant to a court order issued by
CHITAKUNYE J. Therefore the Amendment Regulations, which sought
to
amend s 32 of the Act, did not apply to his case. Thirdly, in any
event the said Amendment Regulations, being subsidiary legislation,
could not amend a provision in an Act of Parliament.





The
learned judge in the court
a
quo
found against the
appellant on the second and third contentions and the application was
dismissed. The learned judge did not consider
the merits of the
application for bail, presumably because of her conclusion that the
provisions of the Amendment Regulations were
applicable to this case.





The
appellant appealed to this Court with the leave of the court
a
quo
. In his grounds
of appeal he challenged the constitutionality of the provisions of
the Amendment Regulations, a challenge which
was not raised before
the court
a quo.





In
addition, the appellant took issue with the finding of the learned
judge in the court
a
quo
that the appellant
was placed on remand in terms of s 32 of the Act and not by virtue of
a court order. The appellant sought, on
appeal, an order that the
Amendment Regulations be declared invalid and the appellant be
admitted to bail. With the exception of
the ground relating to the
finding that the appellant was placed on remand in terms of s 32 of
the Act and not by virtue of a court
order, all the grounds of appeal
were directed at challenging the constitutionality of the provisions
of the Amendment Regulations.





This
appeal was opposed by the respondent, which took the view that the
appeal introduced extraneous matters not covered in the
judgment or
raised at the hearing before the court a quo. It was pointed out,
too, in the respondent's response that the issues
raised in the
notice of appeal were for determination only by a Constitutional
Court and the appellant had therefore followed the
wrong procedure.





At
the hearing before me, Mr
Moyo,
who appeared for the appellant, applied for an amendment to his
grounds of appeal filed of record. The amendment sought to delete
the grounds of appeal and to replace them with the following:





“The
learned judge erred in failing to appreciate that SI 37 of 2004 was
not applicable to the allegations against the accused person
in his
personal capacity.”





Mr
Moyo
indicated that this was the only ground of appeal that he would rely
on. He was aware, he submitted, that only a Constitutional
Court
could deal with the other issues raised in the notice of appeal.
The notice of amendment was handed to Mr
Shava,
who appeared for the respondent, only minutes before the hearing.
I, therefore, at his request, granted Mr
Shava
a postponement to the following day (24 February 2004) in order to
enable him to file his submissions on this new ground of appeal.





Although
this ground of appeal was not before the court
a
quo
, it is a point of
law which therefore can be raised for the first time on appeal.





On
behalf of the appellant Mr
Moyo
contended as follows - The appellant is charged with eleven counts
of contravening s 5(1)(a)(i) of the Exchange Control Act [
Chapter
22:05
], as read with s
4(1)(a)(i) of the Regulations. Only these eleven counts are charged
against him in his personal capacity. The
charges preferred against
him in his personal capacity are not specified in the Amendment
Regulations and the court a quo was wrong
in its finding that these
offences were non-bailable. With respect to the remaining counts,
the appellant was charged only in his
representative capacity as a
director of Telecel Zimbabwe. Because a director representing a
company which is being prosecuted
cannot be incarcerated, the
appellant could not legally be detained in respect of those charges
for which he was being prosecuted
merely as a representative of the
company.





Mr
Shava,
however, submitted that, on the contrary, the appellant was being
charged in his capacity as a director of Telecel on his own account
in terms of s 385(6) of the Act. This was not a case where Telecel
was being prosecuted and the appellant was being charged as
its
representative. The appellant was being personally charged on all
counts.





Section
385(6) of the Act deals with the personal liability of directors or
employees of a company where an offence has been committed
and the
company is liable to be prosecuted. It provides as follows:





“(6) When
an offence has been committed, whether by the performance of any act
or by the failure to perform any act, for which
any corporate body is
or was liable to prosecution, any person who was, at the time of the
commission of the offence, a director
or employee of the corporate
body, shall be deemed to be guilty of the offence unless it is proved
that he did not take part in the
commission of the offence, and shall
be liable to prosecution therefor, either jointly with the corporate
body or apart therefrom,
and shall, on conviction, be personally
liable to punishment therefor.”





Section
385(3) deals with the prosecution of a corporate body. It provides:





"(3) In
any criminal proceedings against a corporate body, a director or
employee of that corporate body shall be cited, as
representative of
that corporate body, as the offender, and thereupon the person so
cited may, as such representative, be dealt with
as if he were the
person accused of having committed the offence in question:





Provided
that -





(i) ...;





(ii) ...;





(iii) if
the said person, as representing the corporate body, is committed for
trial, he shall not be committed to prison but shall
be released on
his own recognizance to stand trial;





(iv) if
the said person, as representing the corporate body, is convicted,
the court convicting him shall not impose upon him in his
representative capacity any punishment, whether direct or as an
alternative, other than a fine, even if the relevant enactment makes
no provision for the imposition of a fine in respect of the offence
in question, and such fine shall be payable by the corporate
body and
may be recovered by attachment and sale of any property of the
corporate body in terms of section three hundred and forty-eight;





(v) the
citation of a director or employee of a corporate body to represent
that corporate body in any criminal proceedings instituted
against it
shall not exempt that director or employee from prosecution for that
offence in terms of subsection (6)." (emphasis
added)





The
Request for Remand Form 242 cites the appellant in his personal
capacity, not as a representative of Telecel or any other company.

There is substance in Mr Shava’s
submission that the appellant is being charged personally on all
counts.





The
charges enumerated in the Remand Form are as follows -





1. Contravening
s 5(1)(a)(i) of the Exchange Control Act [
Chapter
22:05
] as read with s
4(1)(a)(i) of the Exchange Control Regulations SI 109/96 (eleven
counts). On these counts the appellant is alleged
to have sold
foreign currency to Telecel Zimbabwe Limited. Neither the appellant
nor Telecel is an authorised dealer for the purposes
of the Exchange
Control Act.





2. Fraud:
Alternatively contravening s 5(1)(a) of the Exchange Control Act
[
Chapter 22:05]
as read with s 4(1)(a)(i) of the Exchange Control Regulations SI
109/96 (four counts).





3. Contravening
s 11(1)(a) of the Exchange Control Regulations SI 109/96 (forty-five
counts).





Section
11(1)(a) of the Regulations provides as follows:



“11. (1) Subject to subsection
(2), unless otherwise authorised by an exchange control authority, no
Zimbabwean resident shall
-


(a) make
any payment outside Zimbabwe ...”.





I
turn to consider whether these charges are covered by the Amendment
Regulations. Sections 2 and 4 of the Amendment Regulations
provide
as follows:





“2. Section
32 (‘Procedure after arrest without warrant’) of the Criminal
Procedure and Evidence Act [
Chapter
9:07
] is amended in
subsection (2) by the repeal of the proviso thereto and the
substitution of -





‘Provided
that if the person arrested without a warrant is charged with any
offence referred to in paragraph 10 or 11 of the Third
Schedule -





(a) the
judge or magistrate before whom he is brought in terms of this
section shall not decline to order his further detention or
to issue
a warrant for his further detention solely on the basis that there
are no prima facie grounds for the charge, and no court
shall admit
such person to bail for a period of seven days from the date when an
order or warrant for his further detention was issued
in terms of
this paragraph; or





(b) and
the judge or magistrate before whom he is brought in terms of this
section is satisfied that there are
prima
facie
grounds for the
charge, the judge or magistrate shall order his further detention or
issue a warrant for his further detention for
a period of twenty-one
days (unless the charge is earlier withdrawn), and no court shall
admit such person to bail for a period of
fourteen days from the date
when an order or warrant for his further detention was issued in
terms of this paragraph.'...



4. The
Third Schedule ‘Offences in Respect of Which Power to Admit Persons
to Bail is Excluded or Qualified’) of the Criminal
Procedure and
Evidence Act [
Chapter
9:07
] is amended by
the insertion of the following paragraph after paragraph 10 -








'11. Committing
a serious economic offence, that is -





(a) contravening
the Prevention of Corruption Act [
Chapter
9:16
];





(b) contravening
section 63 ("Money-laundering") of the Serious Offences
(Confiscation of Profits) Act [
Chapter
9:17
];





(c) the
sale, removal or disposal outside Zimbabwe of any controlled product
in contravention of the Grain Marketing Act [Chapter
18:
14];





(d) contravening
subsection (1) of section 3 (“Prohibition of dealing in or
possession of gold”) or subsection (1), (2) or (3)
of section 6
(“Disposal of gold by persons authorised to possess gold”) of the
Gold Trade Act [
Chapter
21:03
];





(e) contravening
subsection (1) of section 3 (“Unlawful dealing in or possession of
precious stones prohibited”) or subsection
(1) or (6) of section 6
(“Registers to be kept and returns to be made”) of the Precious
Stones Trade Act [
Chapter
21:06
];





(f) contravening
subparagraph (i) of paragraph (a) of subsection (1) of section 5 of
the Exchange Control Act [
Chapter
22:05
] as read with -





(i) subsection
(1) of section 10 of the Exchange Control Regulations, 1996,
subparagraph (
sic)
and subparagraph (g) called (
sic)
“the Exchange Control Regulations”), by unlawfully making any
payment, placing any money or accepting any payment in contravention
of paragraph (a), (b), (c) or (d) of that section of the Regulations;





(ii) paragraph
(a) or (b) of subsection (1) of section 11 of the Exchange Control
Regulations, by unlawfully making any payment outside
Zimbabwe or
incurring an obligation to make any payment outside Zimbabwe;





(iii) paragraph
(b), (e) or (f) of subsection (1) of section 20 of the Exchange
Control Regulations, by unlawfully exporting any foreign
currency,
gold, silver or platinum, or any article manufactured from or
containing gold, silver or platinum, or any precious or semi-precious
stone or pearl from Zimbabwe;





(iv) subsection
(2) of section 21 of the Exchange Control Regulations by unlawfully
exporting any goods from Zimbabwe in contravention
of that provision
of the Regulations;





(g) contravening
paragraph (b) of subsection (1) of section 5 of the Exchange Control
Act [
Chapter 22:05]
by making any false statement or producing any false document in
connection with a contravention of subsection (2) of section 21
of
the Exchange Control Regulations;





(h) a
conspiracy, incitement or attempt to commit any offence referred to
in subparagraphs (a) to (g).’” (emphasis added)





Thus
the amendment effected by ss 2 and 4 makes non-bailable
contraventions of s 5(1)(a)(i) as read with s 11(1) (a) or (b), s
20(1)
(b), (e) or (f) and s 21(2) of the Regulations.





With
regard to the charges against the appellant set out in paras 1 and 2
of the Form 242, of contravening s 5(1)(a) of the Exchange
Control
Act as read with s 4(1)(a)(i) of the Regulations, these relate to the
sale of foreign currency to Telecel by the appellant.
I am in
agreement with Mr
Moyo
that s 4 of the Regulations is not one of the provisions specified in
the Amendment Regulations.


The
charges which relate to contraventions of s 11(1)(a) of the
Regulations are, however, covered by the Amendment Regulations.





One
point of concern to me is that the facts alleged by the State on p 43
of the record do not establish
prima
facie
that any
payments were made by the appellant in contravention of s 11(1)(a) of
the Regulations.





The
State alleged that:


“The
accused required exchange control authority to operate an external
account. The accused without authority opened an account
with Ned
Bank Sandton, Johannesburg and thereafter, caused by facsimile or by
other means, transferred moneys to America or other
countries on four
occasions, contrary to the provisions of section 11 of the Exchange
Control Regulations SI 109/1996.





The
accused acting together with others would illegally export maize to
South Africa to a company in Industrial Commodities Holdings
and
other companies. He would then cause the proceeds to be banked in
Telecel Zimbabwe's foreign currency account Invik Bank in
Luxembourg.
Presently there is evidence to show that this happened on four
occasions. In so doing the proceeds from the sale
of maize were
externalised instead of being repatriated. This costitutes (sic)
loss and prejudice to Zimbabwe.”





What
is alleged is that moneys were transferred by the appellant,
presumably from Ned Bank, Sandton, Johannesburg, South Africa,
to
America or other countries. There is no allegation that the moneys
were transferred as payment to anyone.





Normally
an accused person cannot be placed on remand where no
prima
facie
case has been
made out against him. See
Martin
v
Attorney-General and
Anor
1993 (1) ZLR 153
(S). However, the mandatory provisions of the Amendment Regulations
are such that the judge or magistrate before
whom the accused person
(in this case the appellant) appears on a mere allegation of
contravening any of the provisions listed therein
is obliged to order
the detention of the accused person for a minimum of seven days. If
a
prima facie
case has been established, the judge or magistrate is obliged to
order the accused's detention for twenty-one days and no bail
application
can be entertained before the expiry of fourteen days
from the date of the order.






Thus
the judge or magistrate before whom the accused person appears in
terms of the proviso to s 32(2) of the Act as amended by the
Amendment Regulations is deprived of his discretion whether or not to
grant bail and merely acts as a rubber stamp to give a semblance
of
legality to the detention. This strikes me as being patently
unconstitutional but the issue of the constitutionality of the
provisions of the Amendment Regulations is not before me and, as was
conceded by Mr
Moyo,
can only be determined by the Constitutional Court.






I have found that
the charges brought under s 11(1)(a) of the Regulations are governed
by the provisions of s 4 of the Amendment Regulations.
This means
that the proviso to s 32(2) of the Act, as amended by the Amendment
Regulations, applies to any application for bail
brought in respect
of these charges.






The
record does not show in terms of which subparagraph of the proviso
the magistrate acted in ordering the detention of the appellant
when
he first appeared on remand. Indeed the learned judge who dealt
with the bail application in the court
a
quo
found herself
unable to determine whether the magistrate had acted in terms of
subpara (a) or (b) of the proviso.





If
the appellant was detained in terms of subpara (a) of the proviso, it
seems to me that the seven days mandatory detention have
long elapsed
and a bail application can now be entertained.






If the magistrate
acted in terms of subpara (b) of the proviso, a bail application may
be entertained fourteen days from the date
of the order of detention.
On the papers, it would appear to me that those fourteen days may
have already elapsed. If this is
so, the appellant would now be
free to make a bail application in the usual manner. At this
application the merits of the bail
application would be considered
and the court could then exercise its discretion as to whether or not
to grant bail.






In
view of the above, I would remit the matter to the court
a
quo
to determine, on
evidence to be placed before it, whether a bail application by the
appellant may now be entertained and if so to
enquire into the merits
of any such application.






Before concluding
this judgment, I wish to make the following observations on the
manner in which this matter was handled -






In
the first place, no application was made for leave of the High Court
to appeal to this Court by the legal practitioner before filing
the
notice to appeal. It was only after the respondent had pointed this
out in its response to the application that leave to appeal
was
obtained from the court
a
quo
. It is
unfortunate that the appellant's legal practitioner was remiss in
such an elementary matter.






The second issue is the challenge
as to the constitutionality of the provisions of the Amendment
Regulations. As stated earlier,
only a Constitutional Court is
endowed with jurisdiction in such matters. The proper course would
have been to proceed, albeit
on an urgent basis, in terms of s 24(1)
of the Constitution of Zimbabwe (“the Constitution”). On this
issue, again, the appellant's
legal practitioner adopted the wrong
procedure.






The
third issue is that no challenge as to the constitutionality of the
provisions of the Amendment Regulations was raised before
the court
a
quo
. The
constitutional issues raised under the guise of a notice of appeal
were not before the court
a
quo
. Had they been
raised, the court might have considered whether to refer the matter
to the Supreme Court in terms of s 24(2) of
the Constitution.






It appears to me
that had the proper procedures been followed less time would have
been wasted and a resolution of the real issues
in this matter be
obtained more speedily.






Accordingly, the
matter is remitted to the High Court in order to determine, on
evidence to be placed before it, whether a bail application
by the
appellant may now be entertained and if so to enquire into the merits
of any such bail application as may be brought before
it.








Scanlen
& Holderness
,
appellant's legal practitioners