S v Mutambirwa (60 of 2025) [2025] ZWSC 60 (11 July 2025)

Judgment No. SC 60/25 Chamber Application No. SC 584/24 1 REPORTABLE (60) EMMANUEL MUTAMBIRWA v THE STATE SUPREME COURT OF ZIMBABWE HARARE: 21 OCTOBER 2024 & 11 JULY 2025 L. Madhuku with S. Kamupira, for the applicant W. Mabhaudhi with L. Masuku, for the respondent IN CHAMBERS BHUNU JA: 1. The applicant was denied leave to appeal to this Court against both conviction and sentence by the High Court (the court a quo). He now applies to this Court in chambers for leave to appeal in terms of r 20 (1) of the Supreme Court Rules, 2018. PRELIMINARY ISSUE 2. At the commencement of the hearing of the application, Mr Mabhaudh counsel for the respondent raised a preliminary objection attacking the validity of the applicant’s application. In his objection in limine, counsel submitted that the applicant’s application was fatally defective for want of a founding affidavit as is required by the rules of Court. 3. Mr Madhuku counsel for the applicant countered that r 20 of the Supreme Court Rules 2018 is self-contained such that it does not require the provision of a fresh affidavit. To this end he contended that r 20 specifically enumerates the requirements for leave to appeal to the Supreme Court and an affidavit is not one of them. The Rule requires that Judgment No. SC 60/25 Chamber Application No. SC 584/24 2 the application be made in form 4 which also makes no reference to an affidavit as a requirement. 4. In developing his argument Mr Madhuku submitted that the rationale behind leaving out the filing of a fresh affidavit is that in an application under r 20 (1) the affidavit used in the application for leave in the court a quo will already be on record. There is no dispute of facts as all the facts are already on the court a quo’s record of proceedings before the Supreme Court. 5. In an application of this nature the overriding consideration is a second opinion based on the same record and facts laid down in the affidavit presented before the court a quo. 6. The requirements for an application for leave to appeal before the Supreme Court are stipulated under r 20 (1) and (2) which provide as follows: “20. Applications for leave to appeal. (1) A person who has been refused leave to appeal by a judge of the High Court may, within ten days of the date when leave to appeal was refused, or within fifteen days of conviction, whichever is the later date, apply to a judge for leave to appeal. (2) An application for leave to appeal in terms of this rule shall be— (a) in Form 4; (b) signed by the applicant or his or her legal representative; (c) accompanied by grounds of appeal in the form specified in r 19; and (d) delivered together with two other copies thereof to a registrar and a copy thereof to a registrar of the High Court.” 7. After hearing submissions by counsel and considering the provisions of r 20, I delivered an extempore ruling which I now incorporate into this judgment. It reads: “Ruling 1. This is an objection in limine. Counsel for the respondent has objected to the applicant’s application on the basis that it is fatally defective in that it is not accompanied by an affidavit as is the norm in applications. 2. Mr Madhuku has countered that the applicant has proceeded under r 20, a self- contained rule which does not require an affidavit. Judgment No. SC 60/25 Chamber Application No. SC 584/24 3 3. A look at r 20 shows that it pertains specifically to applications for leave to appeal before the Supreme Court. It specifically enumerates the requirements for an application for leave to appeal where it has previously been denied by the High Court. A new affidavit is not one of the specified requirements for such an application. Our law on interpretation of statutes is very clear. The specific mention of one thing excludes that which is not mentioned. 4. The rationale for not requiring an affidavit in an application of this nature is understandable. This is because the application is identical if not congruent to the application previously heard and determined by the High Court. The applicant’s affidavit pertaining to the application for leave to appeal is already in the record of proceedings. There is no need for a second affidavit when one is already on record on the same subject matter. 5. Had the law maker required that a fresh affidavit be filed it would undoubtedly have said so under the requirements laid down under r (20), 6. Form 4 which specifies the procedural requirements for the application omits the provision of another affidavit as a necessity. This should be contrasted with form 5 where the lawmaker has specifically legislated that the application be accompanied by an affidavit but for different purposes which are inapplicable to this case. 7. I therefore find that there is no merit in the objection taken by the respondent. The objection is accordingly dismissed.” 8. Having dismissed the objection in limine, I now proceed to consider and determine the application for leave to appeal on the merits. BRIEF SUMMARY OF THE CASE 9. The applicant was employed as a Manager, Estates and Valuation Division of the City of Harare. In that capacity he was a public officer. On 8 July 2024 he was convicted of the crime of criminal abuse of office as defined in s 174 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Following his conviction he was sentenced to 10 years imprisonment with 1 year suspended on appropriate conditions of good behaviour. He is currently in prison serving his sentence. Discontented with the outcome of the criminal proceedings in the court a quo, he applied for leave to appeal Judgment No. SC 60/25 Chamber Application No. SC 584/24 4 against both conviction and sentence without success. He now turns to this Court for relief. 10. The brief facts of the case upon which the applicant was convicted and sentenced are to a large extent not in dispute. The appellant as a public official is alleged to have acted in concert and common purpose with the Mayor, the Acting Finance Director and a Valuation Technician to facilitate the illegal creation and sale of commercial stands from land leased to Old Hararians Sports Club. The misdemeanor allegedly occurred during the period extending from September 2018 to August 2020. 11. The State alleged that the applicant was guilty of criminal conduct comprising acts of commission and omission. They are alleged to have sold land to three sister companies without following laid down procedure thereby showing favour to the buyers. The criminal charges were derived from a deliberate contravention of the relevant laws governing the sale of Municipal land in the following respects: (a) Failure to give notice of the council’s intention to sell the land in contravention of s 152 (2) of the Urban Councils Act [Chapter 29:15]. (b) Failure to institute change of reservation procedure in contravention of s 49 (3) and (4) of the Regional Town and Country Planning Act [Chapter29:12]. (c) Selling the land in contravention of the prohibition of sale of the land endorsed on the sub divisional plan. (d) Selling land leased to Old Hararians zoned as a public open space and recreation. (e) Selling land in contravention of a 2005 Council resolution stipulating that sales of Council land be made by public tender. (f) Prejudicing Old Hararians which had a valid running lease of the land up to 2044. (g) That he showed favour to the sister companies which bought the land and disfavor to Old Hararians Sports club which leased the land 12. The applicant pleaded not guilty denying any wrong doing. He denied acting unlawfully and intentionally contrary to or inconsistent with his statutory duties. He further denied acting in common purpose with his co-accused in the alleged illegal sell of the three commercial stands. Judgment No. SC 60/25 Chamber Application No. SC 584/24 5 13. The appellant admitted that he participated in the creation and sale of the three stands but submitted that this did not constitute an offence. In this regard, he contended that there was no wrong doing on his part because he was the custodian of council land at that time. Although he was aware that the land bearing the stands was leased to Old Hararians Sports club which lease was due to expire in 2044, he denied causing any prejudice to the Sports Club. In denying causing any prejudice to Old Hararians Sports Club he argued that this was because he did not initiate any change of the land use. DETERMINATION OF THE COURT A QUO 14. On the basis of the above facts, the court a quo found that: (i) The applicant participated in the creation of the three commercial stands, (ii) He was heavily involved in the sale of the three commercial stands. (iii) That the applicant was at fault in facilitating the placement of an agenda before the Finance and Development Committee recommending that the stands be sold to the three handpicked sister companies. 15. Placing reliance on the above findings of fact the court a quo convicted the applicant as charged and sentenced him to 10 years imprisonment of which 1 year was suspended on appropriate conditions. 16. Following his conviction and sentence, the applicant sought leave to appeal to this Court without success. The court a quo dismissed the application on 17 September 2024. Undaunted, the applicant has mounted this application for relief. THE RELIEF SOUGHT 17. The applicant seeks the following relief: 1. The application in terms of r 20 of the Supreme Court Rules, 2018, for leave to appeal after leave has been refused by the High Court be and is hereby granted. Judgment No. SC 60/25 Chamber Application No. SC 584/24 6 2. The applicant be and is hereby granted leave to appeal against both conviction and sentence by the High Court of Zimbabwe in a judgment handed down by the Honourable Justice Chikowore in Harare on 8 July, 2024[conviction] and 16 August, 2024[sentence]. 3. The applicant’s appeal shall be regarded as having been instituted on the date of this order. 4. There shall be no order as to costs. THE APPLICANT’S PROSPECTS OF SUCCESS ON APPEAL 18. The primary issue for determination is whether the applicant has prospects of success on appeal. In an application of this nature the paramount consideration are the applicant’s prospects of success on appeal as determined in Magarita v Munyuki & 2 Ors HMA 44. 19. The essential elements of the offence of abuse of public office in contravention of s 174 of the Criminal Code are well known. These were simplified and articulated by TSANGA J in State v Taranhike & Ors HH 222/18 where the learned judge said: To be guilty of abuse of public office: (a) One must be a public officer. (b) Must have engaged in conduct that is inconsistent with his duty as a public officer. (c) Must act intentionally in the act of omission or commission. (d) The purpose of the conduct must be to show favour or disfavor to any one person. 20. It is common cause that the applicant in his capacity as a public officer participated in the creation of the three commercial stands for sale to the three handpicked sister companies. As Manager, Estates and Valuation Division of the City of Harare he was the custodian of the stands vested with the full knowledge of the law pertaining to the sale or otherwise of such land. Judgment No. SC 60/25 Chamber Application No. SC 584/24 7 21. In a bid to sanitize the applicant’s conduct Mr Madhuku submitted that the element of mens rea, that is to say, the intention to favour or prejudice any person impacted by the applicant’s conduct was not proved. 22. The actus reus constituting the commission of the offence is not in dispute. His undisputed acts in the following respects amount to the commission of acts constituting the essential elements of the offence: (a) He was a public officer (b) He participated in the irregular sale of the three stands. (c) The three stands were sold to handpicked companies to the prejudice of members of the public and Old Hararians Sports Club. (d) In so doing he was in breach of his duties as a public official and custodian of the land in question. 23. In developing his argument Mr Madhuku contended that the mere fact that the city of Harare itself participated in the sale of the land through meetings, resolutions and recommendations of its Finance and Development Committee shows that he did not have the requisite mens rea to commit the offence. This is because he genuinely believed that all these acts were at the instance of his employer. 24. In dealing with this aspect of the applicant’s submission, the learned judge a quo puts the matter to rest at para 50 and 51 of his judgment where he says: “The third accused did not dispute that he was involved in the creation of the stands and the process leading to them being sold to the three companies. He says that was not a crime. That cannot be so. He was the custodian of Council land at the relevant time. He knew that the land was on lease to Old Hararians Sports Club. The lease agreement would expire in 2044. No change of reservation was ever initiated by him. Yet he was participating in the creation of commercial stands on land which was lawfully (reserved) for public open space and recreational purposes. And was heavily involved in facilitating the sale of those stands to three handpicked companies. The second and third accused persons should never have been involved in escalating this matter to the stage where an agenda was placed before the Finance and Development Committee recommending to that committee that the stands in question be sold to the three handpicked companies.” Judgment No. SC 60/25 Chamber Application No. SC 584/24 8 25. The court a quo’s findings in the above respects coupled with the applicant’s deliberate failure to observe basic procedures and safeguards relating to the sale of council land as outlined in para 11 above,’ is damning on the applicant’s claim of lack of mens rea. Council can only act through its officials. It has no mind of its own. Thus the applicant cannot now seek to attribute his own mens rea to Council. The evidence and common cause facts tend to establish beyond question that the applicant had the requisite mens rea to commit the offence. 26. On the basis of such observation I come to the conclusion that the applicant has no reasonable prospects of success on appeal. That being the case the application can only fail. 27. Having regard to the seriousness of the offence, the need to safeguard public property and to deter would be offenders, I am of the view that the sentence fits the crime. In the absence of any meaningful appeal against sentence, the appeal against sentence cannot succeed. 28. It is accordingly ordered that the application for leave to appeal be and is hereby dismissed. Sibonile Kampira Attorneys, applicant’s legal practitioners. The National Prosecuting Authority, respondent’s legal practitioners. Judgment No. SC 60/25 Chamber Application No. SC 584/24 9