Africa-Press – Zimbabwe. HARARE, Nov. 17 (NewsDay Live) – The High Court on Monday dismissed an application by businessmen Mike Chimombe and Moses Mpofu to delay their sentencing, saying they were not availed with the judgement to be able to make mitigation submissions, but postponed the case to Wednesday this week for presentencing.
Sentencing was 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, Lovemore Madhuku, to have it delayed.
He argued that the written judgement was not availed to the defendants, and that it was necessary to prepare for mitigation submissions. “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,” Madhuku 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,’ and that the state was ‘directing us to go and watch YouTube for the judgement.’
“My clients do not have access to YouTube,” he said.
Justice Kwenda, however, dismissed the application, as being without merit.
“Once the verdict has been passed, the court must move forthwith to sentencing. Accused persons left everything in the hands of their lawyers, and if the lawyers failed to record the proceedings on behalf of their clients, they cannot labour the court.
“The judgement took two hours for the benefit of all people, including lawyers, accused persons, and the gallery. The court delivered the judgement in public court, and there is no way anyone cannot hear and take notes.”
He added: “When the charge was put to them, all the evidence was ready out in this court, the submissions were made in this court, and the court gave reasons for convicting the first and second accused persons separately, and what roles were played by each.
“When accused persons are legally represented, the court do not always advise the accused persons but their lawyers. The court went outside its duties and advised everyone and all interested parties, including accused persons, to listen carefully and take notes.
“A fair trial does not relate to accused persons alone but a whole context, It’s unfortunate our constitution does not talk of victims of crime but the accused persons rights only.”
But the drama was far from over.
Madhuku immediately applied for leave to appeal to the Supreme Court.
“We believe another court and another judge will have another view of your decision. “We are seeking the official written judgement of the court. I believe the Supreme Court will reach another decision,” he said.
“We just want the Supreme Court to make a determination on whether the request by accused to have a written judgement before sentencing constitutes a violation of the accused persons rights.”
The State, through the prosecutor, Whisper Mabhaudhi countered: “There is no merit in their seeking leave to appeal. The court was clear on the judgement and the accused persons did not find anything wrong with that but they do not state it in their application. The court must dismiss the application for leave to appeal.”
Justice Kwenda dismissed the appeal as well.
“I am surprised that just after the ruling has been given the counsel applied for leave to appeal to the Supreme Court. I tried to explain the rationale. The accused were not stopped from writing notes and also counsel, but usually accused persons do leave that to their counsel. Nobody has denied the accused persons the right to have the judgement it’s administrative…the registrar is there to help them if they want. An application was going to help if the officers refused to furnish them with the ruling,” he said.
“This is an application which is not provided for in our law. There is no violation of accused persons in relation to the judgement concerned.
“The accused persons rights are recognised, but they must not hold the court at ransom. The appeal can only hold when there is an error in law, but in this case, there is nothing.”
After dismissal of the application for leave to appeal, the defence lawyers indicated that they will file for direct access before a Supreme Court judge to make determination on Justice Kwenda’s ruling before presentencing on Wednesday.
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