- October 31, 2019
- Posted in LOCAL
PROMINENT Harare lawyer Admire Rubaya’s bid to evade being put to his defence in the 14kg gold theft trial suffered a major blow after the Supreme Court upheld the High Court’s decision to dismiss his application for leave to appeal against its judgment.
Rubaya together with eight suspects are facing theft charges or alternatively defeating or obstructing the course of justice as defined in section 184 (1) of the Criminal Law (Codification and Reform) Act.
Their trial is pending before Bulawayo High Court judge Justice Thompson Mabhikwa.
They are allegedly involved in the theft of 14,7kg of gold worth US$647 266,40 which was being kept as an exhibit at Plumtree Police Station.
The ruling by Supreme Court judge Justice Nicholas Mathonsi follows an application by Rubaya through his lawyer Advocate Thabani Mpofu instructed by Rubaya and Chatambudza Legal Practitioners, challenging Justice Mabhikwa’s decision to dismiss his application for leave to appeal against his judgment.
Justice Mabhikwa quashed Rubaya’s application for discharge at the close of the State case.
In papers before the court, the State and Rubaya’s co-accused persons were cited as respondents.
Justice Mathonsi said section 198 (4) of the Criminal Procedure and Evidence Act does not give an accused person aggrieved by a decision to dismiss an application for discharge at the close of the prosecution case a right to appeal with leave.
“It only accords that right to the Prosecutor General. Indeed, it is not difficult to understand why that is so. A decision to discharge an accused person at that stage terminates the criminal proceedings completely leaving the accused person to happily go home. In that regard the only party with an interest to test the correctness of the discharge is the Prosecutor-General whose prosecution of an accused person would have failed. Surely the Prosecutor-General should be allowed to appeal in those circumstances,” he said.
Justice Mathonsi ruled that the High Court was satisfied that the evidence led on behalf of the prosecution established a prima facie case for Rubaya to answer, including why he kept following one of the key witnesses, Lovemore Sibanda to whom the gold had been given at the Plumtree magistrate’s court.
“The trial court has already made findings that the applicant has a case to answer. It should be allowed to complete its case. I am not satisfied that this is a case where a grave injustice will occur if there is no interference or where there is gross irregularity in the proceedings calling for interference,” he said.
The judge said Rubaya, in his papers, failed to show the existence of any grave injustice that was likely to befall him in the event that he is placed on his defence.
“The applicant possesses no arguable case on appeal. The gateway to the appeal court cannot be opened for him in the circumstances. Accordingly, the application for leave to appeal be and is hereby dismissed,” ruled Justice Mathonsi.
In his grounds of appeal, Rubaya argued that there was an irregularity in the High Court’s failure to deal with the real issue which was placed before it of whether the applicant was entitled to be granted leave to appeal.
Adv Mpofu argued that there was no law preventing the High Court and the Supreme Court from granting leave to appeal.
According to State papers, it is alleged that on 10 August 2018 at ZRP Plumtree Police Station, Rubaya and his co-accused persons unlawfully took 14,710kg of gold belonging to Zimbabwe Revenue Authority (Zimra).
The allegations were that between July 7 and August 10, 2018 at Plumtree, the accused persons unlawfully caused judicial proceedings to be defeated or obstructed.
They allegedly made by making written or oral statements adducing false evidence in a case of unlawful possession of and smuggling of 14, 710 kg of gold against one Jefat Chaganda which was at Plumtree magistrate’s court.
Chaganda allegedly intended to smuggle to Botswana.
They fraudulently secured the release of the gold to Sibanda the proprietor of Qalo Mine in Gwanda who was not the lawful owner of the gold.
The recovered gold was seized by Zimra and handed over to the police in Plumtree.
All the accused persons pleaded not guilty resulting in the prosecution leading evidence from thirty-one witnesses. However, midway through the trial, the State withdrew charges against one of the accused persons, Ginger Vhiyano, but proceeded against the rest.
At the close of the prosecution case Rubaya and all his co-accused, made an application for discharge on the ground that the prosecution had failed to prove a prima facie case.
The application was dismissed prompting Rubaya to appeal against the decision_The Chronicle