HARARE
–
Prominent
Harare
lawyer
Admire
Rubaya
has
been
cleared
of
any
wrongdoing
following
his
successful
Supreme
Court
appeal
against
a
decision
by
the
lower
courts
to
try
him
and
three
others
for
allegedly
defeating
the
course
of
justice
after
a
gold
theft
trial
involving
a
different
party.
Rubaya
was
jointly
charged
with
a
Plumtree
magistrate,
a
prosecutor
and
a
police
officer.
A
bench
comprising
Justices
George
Chiweshe,
Chinembiri
Bhunu
and
Hlekani
Mwayera
upheld
their
appeal,
ruling
that
the
lower
court
had
misdirected
itself
when
it
made
its
decision.
The
court
also
acquitted
magistrate
Timeon
Makunde.
The
background
is
that
Rubaya
represented
one
Jefat
Chaganda
before
Makunde
who
acquitted
him
of
gold
smuggling.
Makunde
also
ordered
the
release
of
the
gold
back
to
Chaganda.
However,
suspecting
foul
play
in
the
case,
the
State
preferred
theft
charges,
alternatively,
obstruction
of
justice
against
every
official
who
was
involved
in
the
case.
The
four
were
Rubaya,
Makunde,
the
prosecutor
and
police
officer
in
charge
of
minerals.
Rubaya’s
lawyers
Advocate
Thabani
Mpofu,
Oliver
Marwa
and
Tymon
Tabana
said
the
charge
was
“irregular”
and
a
case
of
victimisation
of
the
legal
practice,
violating
the
client-attorney
privilege.
“It
is
respectfully
submitted
that
the
prosecution
of
the
appellant
offends
against
the
attorney-client
privilege
that
obtains
between
the
appellant
and
the
second
accused
(Chaganda).
“Legal
professional
privilege
is
an
established
principle
of
our
law
that
goes
to
the
root
of
a
fair
trial
as
entrenched
by
section
69
of
the
Constitution,”
they
argued.
The
lawyers
mounted
an
application
for
exception
which
the
High
Court
dismissed
before
they
took
the
decision
up
for
review
by
the
Supreme
Court.
The
arguments
pushed
the
State
into
making
concessions.
In
their
appeal,
the
lawyers
pointed
out
that
the
High
Court
judge
made
concessions
that
the
charge
against
Rubaya
was
defective
but
still
allowed
the
matter
to
proceed
which
they
described
as
a
misdirection.
“There
can
be
no
doubt
that
the
court
a
quo
was
not
satisfied
that
a
valid
charge
existed.
It
is
that
finding
which
appellant
wanted
it
to
make
and
to
pronounce
itself
on
its
effect.
By
our
law,
an
accused
person
cannot
be
expected
to
go
through
a
trial
where
no
valid
charge
exists.
That
is
an
irregularity,”
he
argued.
Mpofu’s
argued
that
the
acquittal
of
Chaganda
by
the
magistrate
had
nothing
to
do
with
his
client
and
whether
the
decision
was
correct
or
not
could
not
be
attributed
to
him.
He
also
argued
that
the
decision
by
the
magistrate
is
still
standing
which
made
it
valid
and
had
they
had
an
issue,
it
would
have
been
overturned.
“In
the
instant
case
what
is
revealed
is
that
appellant
(Rubaya)
represented
an
accused
person
who
was
acquitted,
and
that
the
court
acquitting
the
appellant’s
client
also
ordered
the
release
of
the
gold.
“Whether
or
not
it
was
competent
for
the
Learned
Magistrate
to
make
such
an
order
is
irrelevant,
as
the
conduct
of
the
Magistrate
is
not
imputable
to
the
appellant
and
no
basis
has
been
alleged
for
taking
that
position,”
Mpofu
argued.
Mpofu
said
the
State
was
trying
to
nail
his
client
and
his
co-accused
by
any
means
necessary,
disregarding
the
provisions
of
the
law.
“The
prosecution
by
some
clumsy
process,
is
trying
to
reason
backwards
in
order
to
conclude
that
an
offence
or
offences
were
committed.
In
other
words,
because
the
appellant
made
certain
telephone
calls
or
was
seen
with
some
of
the
accused
persons
after
the
acquittal
of
his
client
and
after
the
amgistrate
had
ordered
the
release
of
gold
then
he
must
have
connived
to
steal
the
gold
or
to
defeat
or
obstruct
the
course
of
justice!
“With
the
greatest
respect,
the
essential
facts
constituting
the
offence
must
be
present
at
the
time
that
the
offence
is
committed,
and
cannot
be
inferred
from
conduct
post
the
event
giving
rise
to
the
charge,”
he
argued.
Further
argument
was
that
whatever
the
State
was
doing
did
not
disclose
any
offence
of
theft
or
obstruction
of
justice.
“If
anything,
what
seems
to
be
alleged
is
that
merely
because
the
person
accused
of
smuggling
gold
was
acquitted
and
the
magistrate
ordered
the
release
of
the
gold,
then
everyone
who
interacted
with
the
trial
proceedings
must
be
found
to
be
guilty
of
the
offences
charged,”
he
said.
The
lawyers
said
the
judge
erred
in
not
finding
that
there
was
no
offence
being
disclosed
by
the
charge.
“The
court
a
quo
erred
in
failing
to
find
that
the
criminal
prosecution
is
meant
to
be
an
impermissible
review,
through
the
criminal
process,
of
completed
magistrate’s
court
proceedings.
“The
court
a
quo
also
erred
in
failing
to
decide
the
issue
before
it,
namely,
whether
it
was
competent
at
law
for
the
appellant
to
be
required
to
account
in
criminal
proceedings
for
a
defence
he
had
prosecuted
on
behalf
of
a
client
who
still
stood
by
the
same
defence
and
not
renounced
it.”