East River Investments (Private) Limited & Anor v Hosea Mujaya N.O. & Anor

### Preamble
Judgment No. SC 52/21
1
Civil Appeal No. SC 434/19
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DISTRIBUTABLE	(49)

EAST     RIVER     INVESTMENTS     (PRIVATE)     LIMITED     (2)     BISHOP     JECHE

v

HOSEA     MUJAYA     N.O.     (2)     THE     STATE

SUPREME COURT OF ZIMBABWE

GUVAVA JA, BHUNU JA & BERE JA

HARARE, 20 JANUARY 2020 & 28 MAY 2021

T. Mpofu with him T. L. Mapuranga, for the appellants

T. Mapfuwa, for the second respondent

No appearance for the first respondent

GUVAVA JA:

This is an appeal against the whole judgment of the High Court (court a quo) sitting at Harare dated 11 July 2019.  The court a quo dismissed the appellant’s application seeking a review of the first respondent’s decision to call three new witnesses during a criminal trial.

The delay in handing down this judgment is regretted but was due to circumstances beyond my control.

The facts of the matter which are pertinent to this appeal may be summarized as follows. The appellants were jointly charged with perjury and fraud as defined in ss 183(1) and 136 of the Criminal Law Codification and Reform Act [Chapter 9:23] respectively and for contravening s 63(1) (b) of the Serious offences (Confiscation of Profits) Act [Chapter 9:17]. Prior to the trial, the appellants were served with the second respondent’s schedule of documents which was to be used during the trial in accordance with s 382 of the Criminal Procedure and Evidence Act [Chapter 9:23]. These included a list of witnesses, witnesses’ statements and a plethora of other documents which are not important for the resolution of this case. The appellants in turn prepared their defence outline.

The appellants were thereafter arraigned before the first respondent and pleaded not guilty to the charges levelled against them. During the course of the trial, the second respondent called two witnesses. These were Mr. L. Nyoka and Mrs. E. Mawire. The two witnesses were cross examined by the appellants’ legal practitioner.

Following the testimony by the two witnesses, the second respondent made an application to call three new witnesses who had not been on the witnesses list and whose testimony was not part of the witnesses’ statements availed to the appellants. The application was opposed by the appellants on the basis that it violated their right to a fair trial as it did not afford them an opportunity to factor in the evidence of these witnesses in their defence outline. The appellants also objected to the application on the basis that if the witnesses were called to testify they might end up giving evidence which was outside that which had been stated in the documents upon which the appellants had drafted their defence outline.

The first respondent in dealing with the application, found that the three witnesses which the second respondent sought to call, being; an official from the Zimbabwe Revenue Authority, a Registrar from the Companies Office and a Commissioner of Oaths, were going to comment on documents which were discovered by the second respondent and had been availed to the appellants before the trial commenced. The first respondent also found that the officials were being called to comment on public documents.

On that basis, the first respondent found that the calling of the three witnesses would not cause any prejudice to the appellants. In any event the documents to be commented upon by the three witnesses were already in the possession of the appellants. The first respondent thus allowed the application.

Dissatisfied by the first respondent’s ruling, the appellants took the matter on review before the High Court.  The court a quo in dealing with the application for review found that the calling of the three new witnesses would not cause any prejudice to the appellants as the documents they were being called to testify on were documents which had already been served upon the appellants before the commencement of the trial. The court also found that the request for the calling of the witnesses was merely for the production of the documents which they authored.

The court further found that although the new witnesses had no witness statements recorded before the commencement of trial they could still comment on the documents which were properly served upon the appellants in terms of the law and as such there was no prejudice to the appellants in the calling of the new witnesses. The court further noted that in the event that the witnesses were to testify outside the confines of what they had been called to do, there were remedies available to the appellants in terms of the law.  It further found that if the recorded statements contained evidence which was not in sync with the witness’s testimony, there were also remedies available. With these findings the court dismissed the application for review.

Dissatisfied by the decision of the court a quo the appellant noted this appeal on the following grounds:

“The court a quo erred in not find (sic) that on the facts and the law there existed special circumstances justifying the intervention of the High Court in unterminated proceedings of the magistrates’ court.

The Court a quo erred in not finding that the first respondent’s decision to allow the calling of witnesses whose statements were recorded  halfway through the trial offended the appellants’ fundamental rights enshrined in section 69 (1) as read with 86 (3) and 70 (1) (c) of the Constitution of Zimbabwe.

The court a quo erred in not finding that the decision complained of was in any event Wednesbury unreasonable and susceptible to vacation on review.

The court a quo erred in having no regard to matters of law canvassed and fully ventilated before it.”

It appears to me from the four grounds of appeal that the appeal may be resolved on one main issue.  The issue for determination is whether or not the court a quo erred in finding that the calling of the new witnesses by the second respondent and the recording of the witnesses’ statements during trial was not prejudicial to the appellants.

SUBMISSIONS BEFORE THIS COURT

Mr. Mpofu, for the appellants, submitted that the court a quo ought to have interfered with the trial court’s ruling. It was his submission that it was improper for the first respondent to allow the second respondent to call witnesses in the face of an objection by the defence. He further submitted that the list provided by the State did not mention the three witnesses and that no witness statements had been obtained from these witnesses prior to the trial.

Counsel further argued that there was no law which allowed the State to proceed in the manner it did and that such conduct posed potential prejudice to the defence and breached the right to a fair trial in the circumstances as a defence outline had already been placed on record and other witnesses had since given their testimony and had been cross - examined. He also argued that the first respondent should not have given directions for the recording of statements from these three witnesses in his ruling as this showed bias on his part. It was his submission that the first respondent’s conduct had the effect of controlling the proceedings and assisting the State on how to prosecute its case. He therefore moved the Court to allow the appeal.

Counsel for the respondent, Mr. Mapfuwa, in response submitted that the appellants conceded before the first respondent and court a quo that they were served with the documents prepared by the witnesses who were to be called. He stated that the calling of witnesses was not investigative prosecution hence no prejudice could arise as the appellants were already aware of the documents. He argued that by serving the documents on the appellants, the State was placing them on notice that such documents may be used during the trial to prove its case.

It was counsel’s argument that there was no need for an application to be made since the witnesses were competent and compellable witnesses who could be called to testify at any time. He further submitted that the issue of prejudice was merely speculative on the part of the appellants. It was also his submission that there were a number of safeguards in terms of the law which would ensure that the witnesses did not give testimony that was outside the mere production of the documents. He also submitted that there was no element of bias on the part of the first respondent in directing that statements be recorded from these witnesses. To the contrary, it was his submission that this would have the effect of ensuring that the appellants would not be prejudiced in any way. He thus moved for the appeal to be dismissed.

APPLICATION OF THE LAW

The appellants motivated their argument before the first respondent, court a quo and this Court on the basis that allowing the calling of the three new witnesses violates their constitutional rights as enshrined in s 69 (1) as read with s 86 (3) (e) and s 70 (1) (c) of the Constitution of Zimbabwe (No. 20) Act 2013 (‘the Constitution’). The rights protected under the above stated provisions of the Constitution relate to the right to a fair trial and a right to be given adequate time and facilities to prepare a defence. It is thus the appellants’ case that, the trial court by allowing the calling of the three new witnesses’ in the middle of the trial caused an infringement of their constitutional rights.

It is trite that parties to criminal proceedings must discover and produce evidentiary documents, witness statements and all ancillary papers before trial commences. Litigation proceedings must not be a game of hide and seek where parties try to catch each other by surprise. Parties to proceedings must be afforded adequate time to formulate their defence. The calling of witnesses and recording witness statements must not be done as an afterthought.

The Criminal Procedure and Evidence Act [Chapter 9: 07] (“the Criminal Procedure and Evidence Act”) lays out the procedure to be followed by the State and the defense for the accused in criminal proceedings. Where an accused person enters a plea of not guilty a trial must take place within a reasonable time. Before commencement of a trial, the State under s 382 of the Criminal Procedure and Evidence Act has a mandate to ensure that it serves upon the accused person all notices or documents which will be used in the prosecution of the accused person. The notices and documents which (include evidentiary documents, witness statements, state outlines to mention but a few) are placed before the accused so as to enable him or her to know the case that he or she must defend. This procedure ensures that no one is ambushed during the trial as the parties lay out all the issues revolving around the case before the trial commences. This procedure enables both parties to prepare for trial.

With the commencement of the trial, the trial magistrate hears evidence from the State and the accused person through witnesses’ oral evidence or documentary evidence. The trial magistrate sits as an umpire, who facilitates the examination in chief and cross examination of such witnesses. It is the trial magistrates’ duty to ensure that there is a level playing field among the contenders.  At the end of the trial the magistrate finds for or against one or more of the parties. This process is not arbitrary in nature but rather revolves around giving both parties a chance to make out their case.  The magistrate in carrying out his or her role during trial must be fair, objective and impartial. Above all he must be guided by the need to protect the constitutional rights of the accused person. These rights are enshrined in s 70 of the Constitution.

In the present case, the appellants were duly served with a schedule of documents upon which the State based its case. Amongst these documents being firstly, a founding affidavit purportedly deposed to by the appellants in a magistrates’ court case number 15187/2010, which was to be commented on by a Commissioner of Oaths, one Mr. Albert Nyamupfukudza) secondly a document (letter) authored by a Zimbabwe Revenue Authority Officer one Mr. Beszeck Mawere in his official capacity and thirdly a letter authored by one Mr. M. Chakanyuka an officer in the Companies Registry Office which he wrote in his official capacity. It must be noted that on record the appellants do not dispute having been duly served with the said documents.

The second respondent made an application for the calling of three new witnesses who were to produce the documents which had been served upon the appellants at the commencement of the trial. The appellants opposed the application on the basis that the said three new witnesses did not have recorded statements and that the testimony of the new witnesses would be prejudicial to them as a defence outline had already been made. The trial magistrate dismissed the objection and found that there would be no prejudice to the appellants as the witnesses were being called, in their official capacities, to merely produce documents which were already in the possession of the appellants when they drafted their defence outline.

In dealing with the application for the calling of the witnesses the trial magistrate was carrying out one of his duties as a judicial officer. The question which begs an answer before this Court on the exercise of the trial magistrates’ duty is whether or not he did so judiciously and within the confines of the law. An answer to this question will in turn resolve the issue for determination before this Court.

It is trite that a court has a general power to call witnesses in criminal cases. Section 232 of the Criminal Procedure and Evidence Act is instructive on this point. Section 232 provides as follows:

“Subpoenaing of witnesses or examination of persons in attendance by court

The court—

(a) 	may at any stage subpoena any person as a witness or examine any person in attendance though not subpoenaed as a witness, or may recall and re-examine any person already examined;

(b) 	shall subpoena and examine or recall and re-examine any person if his evidence appears to it essential to the just decision of the case.”(emphasis added)

23. 	A court may at any stage subpoena any witness if it appears essential to the justice of the case. In S v Malumo and Ors (CC-2001/32) [2011] NAHC 55 the Namibian Court commenting on ss 167 and 187 of the Namibian Criminal Procedure Act which has similar provisions as s 232 of the Zimbabwean Criminal Procedure and Evidence Act noted as follows:

“Seventhly the question whether it would be a violation of the right to a fair trial where the Court recalls a witness in terms of section 167 of the Criminal Procedure Act or subpoenas a witness in terms of section 186 of the Criminal Procedure Act will depend on the particular circumstances of each case and the need for a fair trial. In terms of section 166 (2) of the Act, a witness called by the Court may, with leave of the Court, be cross-examined by the prosecutor and the accused person. After the Court has called a witness an accused person must be given an opportunity to reopen his or her case in rebuttal. (See S v Zuma and Others 1996 (2) SACR 339 (N) at 340 a - c).Since a criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side and where a judge is an administrator of justice (R v Hepworth 1928 AD 265 at 277) it is a matter of common sense and fairness how far a court will go in each case to repair the carelessness of a party.”

It can be deduced from the above case that the exercise of discretion by a court in calling witnesses at any time flows from the circumstances of each case and the need for a fair trial. The guiding principle is thus the protection of the accused person’s rights to a fair trial and preservation of the justice of the case. Essentially, the court can and should call a witness if it considers that to do so will help it reach a just decision (see R v Green 1936 SR 181). In R v Green (supra) at page 277 the court further commented on the meaning of the words ‘just decision of the case’ to mean, “I understand the Legislature to mean to do justice between the prosecution and the accused”. A court must thus ensure the calling of any witness at any stage must result in justice between the parties.

In S v Mugwachari and Ors HH 119/85 at page 11-12, Ebrahim J took occasion to discuss the role of a trial magistrate in criminal proceedings. The court noted that:

“The lapse may be due in part to a lack of appreciation of the role of a judicial officer. In R v Evans 1934 CPD 232, it was held that a criminal matter could not be regarded in the same light as a civil matter “where one party is fully entitled to take advantage of a wrong move made by the other party”…In terms of s 218 of the Code, a judicial officer is bound to subpoena evidence which is essential to a just decision of the case. He must exercise his discretion judicially in this regard and determine whether evidence is available and whether it is desirable and in the interests of justice to secure its production.”

Clearly these provisions illustrate that a trial magistrate’s role in a criminal trial is not merely to hear evidence but to ensure that a just decision is reached. The trial magistrate in this case exercised his discretion and found that it was within his right to allow the application by the second respondent to call the three witnesses during the course of the trial. He notably took into account that the witnesses sought to be called by the State were not introducing anything new to the case. Rather the Zimbabwe Revenue Authority officer and officer from the Companies Registry Office were being called to merely comment on letters that they authored in their official capacity. The Commissioner of Oaths was being called to comment on an affidavit which he commissioned and which was part of an official court record.

The documents to be commented on by the three witnesses were substantial evidentiary documents to the matter and it was in the interest of justice and ‘just decision of the case’ that such documentary evidence be commented on by officials with expertise on the contents of the said documents.

Section 69 (1), 70 and 86 (e) of the Constitution guarantee an accused person the right to a fair trial. A judicial officer must thus ensure that such fair trial is carried out. On the facts of this case it appears to me that the allowing of the application to call the three new witnesses by the trial magistrate did not result in a breach of the appellants’ constitutional rights. The documents which the witnesses were called to comment on were in the possession of the appellants as at the commencement of the trial and as such the appellants cannot be heard to argue that they were being ambushed and prejudiced in making their defence case.

The court a quo in dealing with whether or not the trial magistrate erred in allowing the calling of the witnesses found that:

“Clearly the main purpose for the request to call the witnesses was for the production of the documents in their capacity as authors of the documents. These are documents applicants were served with properly in terms of the law. The contents of those documents have been known to the applicants since before trial and so in effect there will not be anything new that is of substance. The fear of the witnesses going outside the confines of the documents can always be corrected in the same way witnesses who testify outside the confines of their statements are dealt with. Further if the statements recorded contain evidence not in sync with the documents in question there are ways to deal with that as the second respondent has clearly indicated the witnesses’ are to testify on the documents in question.”

The above finding cannot be faulted. Indeed if the three witnesses stray away from the documents they are called to comment on there are ways to deal with that. In any event the appellants through cross examination, can rebut any evidence made by the State in making its case. I find that there will be no prejudice on the appellants in the calling of the three witnesses.

It is also necessary to comment that as the trial magistrate was within the law to allow the calling of the witnesses to testify, there was no way the witnesses could appear before the trial court without statements being taken first. Section 382 (1) of the Criminal Procedure and Evidence Act provides the follows:

“(1) Unless a specific period is expressly provided, any notice or document required to be served upon an accused person shall be served by delivering it to the accused at least ten days before the day specified therein for his trial if his trial is before the High Court, or at least two days, Sundays and public holidays excluded, before that day if his trial is before a magistrates court or, …”

The law prescribes that an accused person shall be served with any notice or document at least two days before trial if his or her trial is before a magistrates’ court. The trial magistrate correctly ordered that the witness statements be recorded and served at least two days before the trial commenced. The argument by counsel for the appellants that the first respondent should not have given directions for the recording of the witness statements is thus without merit. The trial magistrate was clearly within his rights to give such direction as this would enable the appellants to have sight of the statement before the trial proceeded and for their counsel to obtain instructions so as to prepare for cross examination.

DISPOSITION

The court a quo’s decision to dismiss the application for review cannot be impugned.  The appeal is clearly devoid of merit and must be dismissed.

In the result, it is accordingly ordered as follows:

The appeal be and is hereby dismissed.

BHUNU JA:			I agree

BERE JA:			I agree

Rubaya and Chatumbudza Legal Practitioners, appellants’ legal practitioners

National Prosecuting Authority, 2nd respondents’ legal practitioners