S v Gumbo and Ors (CRB 87 of 2004; CRB 92 of 2004) [2006] ZWBHC 46 (9 May 2006)

Judgment No. HB 46/06 Case No. CRB 87-92/04 THE STATE Versus HERBERT GUMBO (now deceased) And ARTWELL NJANJI And SINDISO ZHOU And TINASHE SHOKO And EMMANUEL CHIBAYA CHIBHEBHE And VUSIMUZI MANGENA (withdrawn) IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 10 MAY 2006 A P Mpofu for the state Masuku for accused 2 Fuzwayo for accused 3 C P Moyo for accused 4 K Phulu for accused 5 Ruling NDOU J: The accused persons are appearing before us in the main trial. We have already heard testimony from all prosecution witnesses in the main trial. The matter now before me in a trial within trial. The matter was postponed to this date for the commencement of the trial 46/06 HB within trial. Both Messrs Fuzwayo and Phulu are not in attendance. Only Messrs Moyo and Masuku are present. I assume this was by arrangement. Mr Mpofu, for the state, seeks leave to deal with the objection of each accused person separately, starting with accused 4. Mr Moyo, for accused 4, though not vehemently opposed to this approach, raised the issue of the correctness of the procedure in light of the decision of this court in R v Masekiwa & Ors 1965 RLR 225; 1965(3) SA 531(RA). The general rule, as I understand it, is that where there is more than one accused person challenging the admissibility of the ex-curial statement, the admissibility of all the challenged statements should be determined at one trial within trial, rather than dealing with the statements piecemeal. This rule and its attendant exception was approved by MacDONALD AJP in the Musekiwa case supra at 227F-H as follows: “The practice adopted in the General Division … is correct and should be followed in other courts. The practice is calculated to ensure that the judicial officer has all relevant evidence before him when giving his rulings on admissibility and the obvious disadvantages inherent in the procedure adopted by the magistrate in this case are avoided. As was recognised by HOLMES JA, in S v Letsoko and others (T) [1964(4) SA 768 AD], it is usually more “convenient and practical” to consolidate the “trial with trials”. It is not intended to lay down a hard and fast rule that the general practice must always be followed. It sometimes happens that the necessity for holding a trial within a trial arises quite unexpectedly or at a time when it would be inconvenient or impracticable to consolidate such a trial within similar trials. Departures from the general practice must be left to the good sense and judicial discretion of the presiding officer.” I associate myself with the said sentiments of the learned Acting Judge President. It has to be borne in mind that a ruling on admissibility is 46/06 HB not final. Relevant evidence adduced in the main trial may be taken into account by the presiding officer when reviewing his/her decision on admissibility irrespective of the source of such relevant evidence. There is no reason why this should not also be the position when a trial within trial is held. The fact that an issue is peculiar to one accused is not regarded as a reason for ignoring evidence relevant to the issue led by other accused persons or their witnesses. In casu, the necessity to hold a trial within trial did not arise unexpectedly, it was an issue known to all the parties right from the commencement of the trial. Further, the necessity did not arise at a time when it would be inconvenient or impracticable to consolidate the objections raised by the accused persons. There are not submissions from the accused persons legal practitioners indicating that there are any factors placing the matter in category of the exception to the general rule. It may be convenient on the part of the prosecution because some of the witnesses are still on the way to court, but that factor alone does not constitute an exception to the general rule. Accordingly, I order that all the trials within trial are to be heard together and not piecemeal. Attorney General, Criminal Division for the state Ben Baron & Partners, accused 2’s legal practitioners Calderwood, Bryce Hendrie, accused 3’s legal practitioners Majoko & Majoko accused 4’s legal practitioners Coghlan & Welsh, accused 5’s legal practitioners