Prosecutor General v Busangabanye & Anor (HC 3605 of 2015) [2015] ZWHHC 427 (23 April 2015)

1 HH 427-15 HC 3605/15 THE PROSECUTOR GENERAL versus PHIBEON BUSANGABANYE and MAGISTRATE N MUPEIWA N. O HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 24 April 2015 Urgent Chamber Application E Mavuto, for the applicant WT Manase, for the 1st respondent Second respondent, in default MATHONSI J: This is a matter rising out of the trial of one Anderson Tagara at the Magistrates Court Harare on a charge of fraud as an accessory after the fact in contravention of s 206 as read with s 136 of the Criminal Law Code [Chapter 9:23]. At the conclusion of that trial Tagara was found guilty and sentenced to a fine of $4000-00 or, in default of payment, 12 months imprisonment. In addition he was sentenced to 12 months imprisonment wholly suspended for five years on condition of future good behaviour. Tagara is not a party to the present application and probably does not want to in light of his recent brushes with the law. The facts themselves, if this was not an extremely unfortunate matter involving loss of huge sums of money and the use of the name of God in vain, would have been comic indeed. What the trial court found to have been proven is that Ndabazinengi Shava purchased a Bentley Continental motor vehicle registration number AVO 1759 from Tagara for a sum of $230 000-00 after the latter had imported the luxury wheels from the United Kingdom. Shava did not execute a change of ownership of the vehicle into his name but it remained in the name of Tagara. Firmly believing in the power of the Almighty which can bring abundant blessings to God-fearing people, Shava took the Bentley to a well known “prophet” one Eubert Angel Mudzanire who promised him abundant blessings if he “seeded” the Bentley to the man of God. They agreed that if Shava’s fortunes multiplied three fold within eight months of HH 427-15 HC 3605/15 “seeding” the Bentley to the prophet, the prophet would assume ownership but if such did not eventuate the Bentley would be returned to Shava. As is usual with anything human, Shava’s fortunes remained rooted in the same position at the expiration of the eight months period and when he sought to recover the Bentley, he discovered to his shock that the prophet had purported to sell the Bentley to the first respondent for a paltry sum of $76 000-00. Ably assisted by Tagara, they had signed a sale agreement to facilitate change of ownership. The prophet made good his escape leaving Tagara at the mercy of the long arm of the law. Even the help of a couple of the prophet’s relatives, who testified in his favour, could not save Tagara who was convicted and sentenced aforesaid. The trial magistrate was requested by state counsel to issue a disposal order relating to the Bentley in terms of s 61 (1) of the Criminal Procedure and Evidence Act [Chapter 9:07] as it had been exhibit 4 during the trial. He skated the issue and ruled as follows at p 29 of his judgment; “I have also considered whether I should order that the Bentley motor vehicle should be returned to the complainant. I have noted that the motor vehicle is currently in the hands of an innocent purchaser and that by handing the registration book over to Eubert Angel Mudzanire the complainant made it possible for Eubert Angel to represent himself and (sic) the owner. The innocent part (sic) can easily raise a defence of stoppel (sic) against the complainant, because of this it is best to leave the issue of the motor vehicle to the Civil Court. In any case it was clear that the issue of the motor vehicle is already before the High Court it will be best to leave it to be finalised there.” Whatever it is that the magistrate was saying, the bottom line is that he was washing his hands of the Bentley, Pilate style, and in the process abdicating his adjudicating duties. It is either Shava was entitled to the Bentley or the first respondent was. There can be no middle road, never mind the existence of a civil court. The applicant, who is the prosecuting authority in this country, has since challenged the decision of the magistrate by way of review application made in this court and that application is yet to be determined. Meanwhile, the first respondent continues to enjoy the use of the Bentley, a situation which riles the applicant who has now come to court on an urgent basis seeking the following relief: “TERMS OF THE FINAL ORDER (SOUGHT) 1. The 1st respondent be and is hereby ordered to surrender a motor vehicle, a Bentley Continental registration number ACO 1759, engine number CKH002121, chassis number SCBDN 23WOBC68378 to Ndabazinengi Shava (complainant in case CRB R 104/15) within 24 hours of the granting of this order pending the outcome of the main application for review. HH 427-15 HC 3605/15 2. The respondents to bear costs of this suit if they oppose this application. INTERIM RELIEF (GRANTED) 1. The first respondent is directed not to use or dispose of the motor vehicle Bentley Continental registration number ACO 1759, engine number CKH003121, Chassis number SCDDN 23 WOBC 68378.” Mr Manase who appeared for the first respondent took a point in limine that the matter is not urgent by reason, inter alia, that the need to act arose when the magistrate sentenced Tagara on 18 March 2015. For the applicant to have waited 22 days to file the application means that this is now self created urgency not contemplated by the rules. In my view this issue of self-created urgency has now been blown out of proportion. Surely a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often in recent history we are subjected to endless points in limine centred on urgency which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to and where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust. I am satisfied that this application was brought within a reasonable time and that it is one which deserves to be heard on an urgent basis. I accordingly dismiss the point in limine. The applicant states that the magistrate was required by s 61 of the Criminal Procedure and Evidence Act [Chapter 9:07] to issue a disposal order in favour of Shava upon an application being made before him to do so because he had made a finding that the Bentley belonged to Shava. I agree. Section 61 (1) of the Act provides: “Subject to this Act and except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in s 60 or produced in evidence – (a) if the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or (b) if the person from whose possession it was obtained is not entitled to the article or may not lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or (c) if no person is entitled to the article or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the state.” HH 427-15 HC 3605/15 In my view the section reposes upon a trial court the discretion to proceed in terms of three available options set out therein. The Bentley formed the subject of the criminal prosecution and was produced as evidence and therefore in the custody of the court. At the conclusion of the trial the magistrate should have issued a disposal order in terms of s 61 (1) of the Act: S v Muzvaba HH 360/13. The magistrate made clear findings that the vehicle belonged to Shava and his decision to become ambivalent at the end was not helpful at all. At p 12 of his judgment he stated: “I therefore believe the accused when he say(s) he imported the Bentley motor vehicle on his own and when the motor vehicle was finally delivered in Harare the complainant stated that he was interested in the motor vehicle and accused sold the motor vehicle to the complainant for US$230 000-00 and complainant paid in full the money and accused gave him the Bentley in question together with all the documentation and the number plates which were not yet fixed in the motor vehicle, but the two did not reduce anything to writing. However, the issue of whether the complainant gave the accused money to import the motor vehicle in question or not is neither here nor there. It is not very important because the moment when accused sold the motor vehicle to the complainant and through their verbal agreement the accused passed ownership to the complainant of the motor vehicle in question. What is important is to decide what happened after mid-May 2012 when the complainant was now the true owner of the Bentley motor vehicle in question.” After indulging himself a lot about matters of religion and how the prophet was required to intercede between Shava and God for the former to be showered with blessings, the magistrate again pronounced at p 18 of the judgment: “What this mean(s) is that when the complainant handed over the car and the registration book he did not pass ownership because he never formulated that intention. Ownership was only going to pass to Eubert Angel after realisation of blessings and Eubert Angel knew that ownership had not passed to him and that necessary ownership transfer document was to be done upon complainant receiving blessings. Eubert Angel was also aware that in the event of no blessings by complainant, complainant was to get his car back. To this end Eubert Angel though well aware that he had not acquired ownership proceeded to dispose of the motor vehicle as if he was the owner. The motor vehicle had been placed under the custody of Eubert Angel pending the fulfilment or otherwise of the condition precedent to him getting ownership.” I have stated that s 61 (1) permits the trial court to order the return of the article to the person from whom possession was obtained if that person may lawfully possess the article. The court found that Shava was the owner and that ownership did not pass to Eubert Angel. Prior to that, ownership had passed from Tagara to Shava even though documentation had not been done. Clearly therefore by its findings the trial court should have ordered the return of the vehicle to Shava . It did not, contenting itself with passing the buck to some other court. HH 427-15 HC 3605/15 It matters not that the first respondent was not a party to the criminal proceedings. He could not be as he was not an accused person. What remains is that s 61 (1) allows for the return of the article to the lawful owner at the conclusion of the trial. In his opposing affidavit the first respondent has stated a lot of things not relevant to the present inquiry. He has also made the point that the relief being sought by the applicant in the main is not competent because this court, per Zhou J in HC 11372/14, has already settled the issue of possession of the Bentley in his favour which provisional order was confirmed by Makoni J on 28 January 2015. He has also annexed to his affidavit the judgment of Mangota J in re The National Prosecuting Authority HH 152/15 delivered on 16 February 2015 in which the learned judge ordered the first respondent not to dispose of the Bentley “until all proceedings which relate to the car have been finalised.” In my view those decisions will certainly become relevant when deciding whether to grant the final order being sought or not. It is significant that they were made before the conclusion of the criminal trial and before the trial magistrate had made findings to the effect that ownership of the Bentley resides with Shava. Those findings triggered the application of s 61 (1) of the Act which I have cited. I am not sitting to decide the propriety or otherwise of the review application but whether to grant the applicant interim relief in the face of the trial court’s inability to issue a disposal order. Interim relief is granted on the mere proof of a prima facie case: Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) 193B. In my view the applicant has indeed established a prima facie case for the relief sought. I am mindful of the fact that Mangota J did issue an order similar to the one sought by the applicant in this matter. However the relevant part of the order is rather general and does not specify which proceedings are affected. As it is criminal proceedings have been completed where the magistrate did not issue a disposal order in respect of the exhibit. That order also does not relate to the use of the Bentley which the present application intends to prevent. In the result, I grant the provisional order in terms of the draft order the interim relief of which is as follows: INTERIM RELIEF GRANTED That pending the determination of this matter, the applicant is granted the following relief: HH 427-15 HC 3605/15 1. The first respondent is directed not to use or dispose of the motor vehicle Bentley Continental, registration number ACO 1759, engine number CKH002121, Chassis number SCBDN 23 WOBC 68378 until the review application filed by the applicant has been finalised. National Prosecuting Authority, applicant’s legal practitioners Manase & Manase, 1st respondent’s legal practitioners