Court name
Supreme Court of Zimbabwe
Case number
SC 12 of 2005
Civil Appeal 46 of 2005

S v Kuruneri (46/05) (SC 12 of 2005, Civil Appeal 46 of 2005) [2005] ZWSC 12 (04 April 2005);

Law report citations
Media neutral citation
[2005] ZWSC 12













DISTRIBUTABLE
(10)





Judgment
No. SC 12/05


Civil
Appeal No. 46/05











CHRISTOPHER
TICHAONA KURUNERI v THE STATE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
MARCH 17 & APRIL 5, 2005








G
Chikumbirike
,
for the appellant





M
Nemadire
,
for the respondent









MALABA JA: This is an appeal
against the judgment of the High Court (HUNGWE J) delivered on 18
February 2005 dismissing an application
by the appellant to be
admitted to bail on the ground that new facts had arisen since the
refusal by BHUNU J on 8 November 2004 to
admit him to bail. The
appellant had also alleged that he had a right to be released from
custody unconditionally or upon reasonable
conditions in terms of s
13(4)(b) of the Constitution of Zimbabwe, as reasonable time in which
he could be lawfully detained without
trial had elapsed.






In this appeal
we consider the correctness or otherwise of the decision of the court
a
quo

that no new facts had arisen which had not been placed before BHUNU J
when he determined the application by the appellant to be admitted
to
bail on 8 November 2004.






The
appellant has made an application in terms of s 24(1) of the
Constitution of Zimbabwe alleging that his right, as enshrined in
the
Declaration of Rights, to be released from custody unconditionally or
upon reasonable conditions, not having been tried within
a reasonable
time, is being violated. The question whether reasonable time in
which the appellant could be lawfully detained without
trial has
expired is therefore pending determination by this Court sitting as a
Constitutional Court.





I
now turn to the facts of the case to determine the question whether
the refusal to admit the appellant to bail was correct.






The appellant
is a Minister of Finance, businessman and commercial farmer. On 26
April 2004, he appeared before the Magistrates
Court charged with
four counts of contravening the Exchange Control Act [
Chapter
22:05
]
and one count of contravening s 21(3) of the Citizenship of Zimbabwe
Act [
Chapter
4:01
].
He was remanded in custody awaiting trial.






The
allegations against the appellant on the charges arising from the
contravention of the Exchange Control Act were, that during
the
period extending from March 2002 to the time of his arrest, he had
acquired, in Zimbabwe, foreign currency amounting to US$582
611,99,
British Pounds 34371,00 and Euro 30 000 from persons other than
authorised dealers. The State alleged that the appellant
exported
the said foreign currency to South Africa where he gave it to one
Christopher Heyman the Director of Venture Projects and
Associates, a
company contracted by him to manage his businesses in that country.


It
was alleged that part of the foreign currency illegally exported to
South Africa was used to purchase a Mercedes Benz motor vehicle
for
R547 734. Three residential properties were bought, namely No. 38
Sunset Avenue Llandudno, Cape Town, valued at R2.7 million
and a
house and a flat valued at R2.5 million each. It was further
alleged that on 6 March 2002 the appellant, being a Zimbabwean
resident, unlawfully caused a Zimbabwean bank, that is to say the
Jewel Bank, to transfer R5.2 million to CB Niland and Partners
who
were his lawyers in South Africa as payment for the purchase of an
immovable property at No. 17 Apostle Road Llandudno, Cape
Town. All
the immovable properties were registered in the name of a company
known as Choice Decisions 113 (Private) Limited, of
which the
appellant is the sole director. He also had R 1300 000 in a bank
account in South Africa.





On
the count arising from the contravention of the citizenship of
Zimbabwe Act, it was alleged that the appellant, being a citizen
of
Zimbabwe and a holder of a Zimbabwe Diplomatic Passport, was also a
holder of a Canadian passport. The allegation was that during
the
period extending from 19 September 2003 to January 2004, on various
specified dates and without the written permission of the
Minister of
Home Affairs, the appellant made use of the current Canadian passport
to travel to South Africa.






The appellant
did not deny that he placed the amount of foreign currency in the
hands of the person mentioned in the charge nor did
he dispute the
fact that part of the foreign currency was used to purchase the
immovable properties. What he denied was the allegation
that he
obtained the foreign currency in Zimbabwe from persons other than
authorised dealers. It was his defence that the foreign
currency
was paid to him by one
Luiz
Solano

in April 2002 as fees for consultancy services rendered by him to a
firm known as Filipe Solano 51 during the years 1976 to 1981
when he
resided in Canada. The allegation was, therefore, that the foreign
currency was part of “free funds” earned by him
outside Zimbabwe.
There was no explanation as to why the foreign currency for
services rendered in the years from 1976 to 1981
was only paid to the
appellant in April 2002. Nor was any documentary evidence produced
to confirm the payment of such large sums
of foreign currency in hard
cash.






The
appellant did not deny that he was in possession of the Canadian
passport which he made use of in circumstances which amounted
to a
contravention of the Citizenship of Zimbabwe Act.






On 11 May 2004 the appellant made
an application to the High Court to be admitted to bail. Having
considered the nature of the offence
and the punishment likely to be
imposed on the appellant upon conviction, HLATSHWAYO J who heard the
application, was of the opinion
that had the appellant been charged
only with the contravention of s 21(3) of the Citizenship of Zimbabwe
Act and the contravention
of the Exchange Control Act arising from
causing Jewel Bank to transfer R 5.2 million to CB Niland and
Partners, he would have been
entitled to be admitted to bail.






On
the remaining charges arising from the alleged contravention of the
Exchange Control Act, the learned judge refused to admit the
appellant to bail on the ground that there was a likelihood of him
absconding and not standing trial should he be admitted to bail.

The adverse factors considered in balancing the interests of justice
and the right of the appellant to liberty were the seriousness
of the
offences; the enormity of the amounts of foreign currency involved,
the severity of the sentences of imprisonment likely to
be imposed on
the appellant upon conviction; the substantial wealth possessed by
the appellant outside the country; the residence
of the appellant's
family in Canada; the absence of an extradition treaty between the
two countries and the strength of the State
case.





The
favourable factors considered were the presumption of innocence,
ownership of immovable properties by the appellant in Zimbabwe;
his
business interests in the country; the assurances given by him that
he would not abscond if admitted to bail; the status of the
appellant
as a Minister of Finance and his willingness to submit himself to the
most stringent bail conditions. An appeal against
the decision of
HLATSHWAYO J was dismissed on 17 June 2004 in case SC 40/04.






On
2 November 2004, a second application to be admitted to bail was made
by the appellant to the High Court in terms of s 116(1)(c)(ii)
of the
Criminal Procedure and Evidence Act [
Chapter
9:07
]
on the ground that new facts which had not been placed before
HLATSHWAYO J had arisen. The allegation was that investigations
which the police had indicated that they wanted to undertake in Spain
on the issue of the payment of foreign currency to the appellant,
had
not yielded results which strengthened the State case. It emerged,
however, that the investigations had established that the
person by
whom the appellant claimed to have been paid the foreign currency in
April 2002 had in fact died on 13 October 2001.
The discovery of
this fact strengthened the State case and weakened the appellant's
defence to the charges.



On 8 November 2004 BHUNU J heard
the second application by the appellant to be admitted to bail. The
learned judge found that no
new facts had arisen which tilted the
scales in favour of admitting the appellant to bail. About six
weeks later, the appellant
made a third application to the High Court
to be admitted to bail in terms of s 116(1)(c)(ii) of the Criminal
Procedure and Evidence
Act.






It was known
to the appellant’s legal practitioner at the time the second
application to be admitted to bail was placed before BHUNU
J, that in
April 2004 the Attorney General had requested assistance from the
appropriate authority of South Africa in the criminal
matters
involving the appellant in terms of the Criminal Matters (Mutual
Assistance) Act [
Chapter
9:06
].
The Attorney General’s representative said that the assistance
requested was for investigations to be conducted on the activities
carried out by the appellant in South Africa in relation to the
charges preferred against him.






In
a letter dated 13 December 2004 addressed to the Attorney General’s
representative, the appellant’s legal practitioner assumed
without
any factual basis, that the assistance requested by the Attorney
General from the appropriate authority in South Africa was
to have an
application made to the courts in that country for interdicts
restraining the appellant from dealing with or disposing
of the
immovable properties as well as the foreign currency held in bank
accounts in that country. The letter reads in part;







“My
visit to your office on the 8
th
of November 2004 refers.







I put on
record that you confirmed to me that the Attorney-General has sought
the assistance of the South African authorities in the
on going
investigations in Dr Kuruneri’s case. I can only assume that the
request was in terms of section 10(a) of the Criminal
Matters (Mutual
Assistance) Act [
Chapter
9:06
].
You were however not in a position to shed any further light on the
issue as some of the information may be confidential (understandably)
or was not known to you (the proceedings being conducted out of the
country). You however indicated that the Asset Forfeiture Unit
in
South Africa was involved in the evidence gathering. This, to you,
seemed to give different dimension to the inquiry.






From
my end, I am of the view that this new development, the invocation of
the Criminal Matters (Mutual Assistance) Act gives a new
dimension
consequently new circumstances emerge which were not placed before
the judge who determined the previous application and
which have
arisen after that determination”.









As indicated above the invocation
of the Criminal Matters (Mutual Assistance) Act was not a fact which
had not been placed before
BHUNU J. Section 10(1)(a) gives the
Attorney-General a discretion to request an appropriate authority of
a foreign country to arrange
for evidence to be taken in the foreign
country for the purposes of proceedings in relation to a criminal
matter in Zimbabwe. Notwithstanding
the fact that he believed that
the assistance requested by the Attorney General was for the
appropriate authority to arrange for
evidence to be taken in that
country for purposes of proceedings in the appellant’s case in
Zimbabwe, the appellant’s legal practitioner
founded the
application to be admitted to bail on the ground that the assistance
requested from the appropriate authority was for
the interdicting of
the appellant from dealing in or disposing of the immovable
properties and foreign currency in bank accounts
or freezing of those
assets in South Africa.






HUNGWE
J heard the third application by the appellant to be admitted to
bail. The learned judge held that the State case had not
been
weakened by what had happened during the period extending from 8
November 2004 to 18 February 2005. He said:-






“The
change in applicant’s circumstances have been for the worst. The
affidavit by Assistant Commissioner Mangoma indicates that
the South
African inquiry has not concluded. What it may yield is anyone’s
guess but for the purpose of the application it cannot
advance his
cause. Besides if one of his defences has been proved to be false
the inference must be that he is not being truthful
with the
investigations. Given his stature a lie told to investigations
tends to cast him in bad light with the courts hence the
conclusion
by this court that he cannot be trusted”.









This Court
will only interfere with the decision of the learned judge if an
irregularity or misdirection has been committed or if
his discretion
has been exercised in an unreasonable or improper manner. (See
S
v Chimanikire
1986
(2) ZLR 145 (S);
Makamba
v State

SC 20/04).







No
irregularity was committed in the proceedings nor was any
misdirection committed by the learned judge on the applicable
principles.
He appreciated that the principle governing the
determination of an application to be admitted to bail in terms of s
116(1)(c)(ii)
of the Criminal Procedure and Evidence Act was that the
facts on which the application was based should not have been before
the
judge who determined the previous application because they would
have arisen or been discovered after that determination. He was
also aware of the fact that he was required, in the determination of
the application, to consider the effect of the new facts on
the
previous decision that the accused person was likely to abscond and
not stand trial if admitted to bail. The learned judge
was aware
that the new facts had to be weighed in the context of the adverse
factors and favourable factors put in the scales of
justice in the
determination of the previous application. See
State
v Aitken

(2) 1992 (2) ZLR 463 (S) at 467 E – 468 A.






The
determination by the learned judge that the facts alleged by the
appellant to have arisen after the determination of the previous
application when weighed in the context of other relevant factors,
both adverse and favourable to him did not tilt the scales in
his
favour, is not an unreasonable decision. The proceedings allegedly
instituted by the appropriate authority of South Africa
as a result
of the request made by the Attorney General in April 2004 in terms of
the Criminal Matters (Mutual Assistance) Act, have
not yielded
results the effect of which was the reduction of the risk of the
appellant absconding and not standing his trial if admitted
to bail.





No
interdict restraining the appellant from dealing with or disposing of
the immovable properties and foreign currency in bank accounts
in
South Africa has been issued. The substantial wealth held by him in
that country is still under his ownership and control.
The
realisation that he can still have access to these resources may
induce him to abscond, especially when regard is had to the
fact that
he is aware that his explanation as to the source of the foreign
currency, namely, that it had been paid to him by Luiz
Solano as hard
cash in April 2002, has been discredited by the establishment of the
fact of the death of the latter on 13 October
2001.





I
need to stress here that we did not find it necessary to determine
the correctness of the decision by the learned judge to dismiss
the
application by answering questions of misdirection allegedly
committed by the learned judge on whether or not reasonable time
in
which the appellant could be lawfully detained without trial had
expired.





Apart
from the fact that that question is now pending determination by the
Constitutional Court, the learned judge did not in effect
make a
decision on the matter. Whilst he unequivocally stated in the body
of the judgment that “in all the circumstances” of
the case he
was “unable to say that the delay has been so unreasonable as to
entitle” the appellant “to the order of release”,
the learned
judge later made a statement the effect of which was to contradict
his earlier finding on the same question as to whether
reasonable
time had expired. He said;







“Had
not the applicant faced the extra charge involving the holding of a
foreign passport

I
would not have hesitated to come to the conclusion that the delay in
bringing him to trial had become unreasonable and that he be
released
on reasonable conditions”.







Mr
Chikumbirike
was on firm ground in arguing that the learned judge misdirected
himself in placing any weight at all on the possession by the
appellant
of a current passport issued in his name by the government
of a foreign country in light of the decision by HLATSHWAYO J on the
matter.
The existence of two contradictory findings of fact on the
same question however remained unresolved. The effect of the
contradiction
is that no finding of fact was made on the question
whether reasonable time in which the appellant could be detained
without trial
had expired.






The
attack upon the determination of the application by the appellant to
be admitted to bail in terms of s 116(1)(c)(ii) of the Criminal
Procedure and Evidence Act was accordingly the only matter considered
in this appeal. It is without merit.





The
appeal is accordingly dismissed.











CHIDYAUSIKU
CJ: I agree














ZIYAMBI
JA: I agree













Chikumbirike
& Associates
,
appellant's legal practitioners


The
Attorney General’s Office
,
respondent's legal practitioners