SC 23-14 - ATTORNEY GENERAL v MUCHADEHAMA & ANR

THE ATTORNEY GENERAL

v

  1.  ALEC MUCHADEHAMA (2) CONSTANCE GAMBARA

 

 

SUPREME COURT OF ZIMBABWE

HARARE, FEBRUARY 15, 2012 & MARCH 20, 2014

E Nyazamba, for the applicant

B Mtetwa, for the respondents

Before MALABA DCJ, in chambers.

 

This matter was placed before me in chambers as an application for condonation and extension of time within which to appeal from a decision of a judge of the High Court.  The decision refused leave to appeal to that court from a decision of a Magistrate discharging the respondents of a criminal charge at the close of the case for the prosecution.  The question arose as to whether there was any provision granting the Attorney General the right to appeal.

The decision on the question raised is that there is no statutory provision giving a right of appeal from a decision of an intermediate Court of Appeal like the High Court refusing leave to appeal to it from a decision of a subordinate tribunal. 

The decision on the question is by a single judge sitting in chambers.  It became necessary to enter into the question for the purposes of determining whether or not the proceeding in chambers was a proper application for condonation and extension of time within which to appeal as claimed by the Attorney General.  The question whether there is a right to appeal should ordinarily be decided by the Supreme Court constituted by a minimum of three judges.

On 14 December 2009, a magistrate, acting in terms of s 198(3) of the Criminal Procedure and Evidence Act [Cap. 9:07] (Criminal Procedure & Evidence Act), found the respondents not guilty of the crime of contempt of court in contravention of s 182(1) of the Criminal Law (Codification and Reform) Act [Cap. 9:23] with which they had been charged.  The magistrate had found, at the close of the case for the prosecution, that there was no evidence on which a reasonable court acting carefully, might properly convict the respondents of the offence charged or any other offence of which they might be convicted on the same charge.

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