Africa-Press – Zimbabwe. HARARE, Nov. 17 (NewsDay Live) – There was drama at the High Court on Monday as businessmen Mike Chimombe and Moses Mpofu sought to delay their sentencing, saying they were not availed with the judgement to be able to make mitigation submissions.
The judgement is expected to be announced today, but the ruling Zanu PF members, who were found guilty of defrauding the government of US$7 million in a botched Presidential Goats Scheme tender, launched an appeal through their lawyer, Professor Lovemore Madhuku, to have it delayed.
“The accused’s position is that without sight of the written judgement will be distinct and unable to do proper mitigation and also will be unable to respond adequately. The disadvantages the accused will face in the absence of the written judgement will be more,” he said.
“The accused persons did not take down the notes when the judgement was delivered, and we need to afford them the opportunity to read it and give instructions to their lawyers.
He argued that the request was a ‘legal right to a fair, public trial.’
“The accused persons certainly require the judgement to make preparations for mitigation… they need to prepare, and by giving them time to prepare the court will be giving them their legal right. The sentencing guidelines require the sentencing judgement,” Madhuku said.
The State, through the prosecutor, Whisper Mabhaudhi opposed the application, saying it was misplaced.
“The only available application by accused persons convicted by High Court are provided for in section 4 of the sentencing guidelines and this particular application is misplaced,” Mabhaudhi said.
“The accused persons are requesting further information, and the judgement was delivered before an open court, and the court announced that parties should take notes, and there was no undertaking that the judgement would be released before sentence was made.”
He added: “The judgement is there and the lawyers concede that the judgement for conviction is final and the next stage is pre-sentencing procedures. Although my colleagues argue that they cannot proceed to sentencing because there is no written judgement, the sentencing (should) proceed and be delivered on the same way the conviction judgement was delivered. At this stage we cannot analyze the judgement. There is no provision that they can make an application before sentencing.”
“The applicants do not require the judgement other than a matter of proof of being read. This is a matter of preference, which is being disguised by the accused persons as a right. In the absence of a written judgement, this particular application is not provided for to detain the court.”
He said the application should be dismissed
In response, Madhuku said they were “only seeking a stay of pre-sentencting pending availability of the written judgement. We are not challenging the conviction, but we are saying to enable us to facilitate pre-sentencting, avail the written judgement to us.
“The state is directing us to go and watch YouTube for the judgement, but my clients do not have access to YouTube.”
Justice Pisirayi Kwenda postponed the proceedings to after lunch today.
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