Africa-Press – Zimbabwe. THE High Court yesterday dismissed an application by businessmen Mike Chimombe and Moses Mpofu to delay their sentencing, saying they were not provided with the judgment to be able to make mitigation submissions, but postponed the case to tomorrow for pre-sentencing.
Sentencing was expected to be announced yesterday, 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.
Madhuku argued that the written judgment 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 judgment they will be 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 judgment will be more,” Madhuku said.
“The accused persons did not take down notes when the judgment was delivered and we need to allow them 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 judgment”.
“My clients do not have access to YouTube,” he said.
Justice Pisirayi 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 judgment took two hours for the benefit of all people, including lawyers, accused persons and the gallery. The court delivered the judgment 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 read 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 does 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 the whole context. It’s unfortunate our Constitution does not talk of victims of crime but the accused person’s 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 judgment of the court. I believe the Supreme Court will reach another decision,” he said.
“We just want the Supreme Court to decide on whether the request by the accused to have a written judgment before sentencing constitutes a violation of the accused person’s 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 judgment, and the accused persons did not find anything wrong with that, but they did 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 had 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 judgment 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 the accused persons in relation to the judgment 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 determine Justice Kwenda’s ruling before pre-sentencing tomorrow.
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