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The High Court has set aside the cancellation of a warrant of arrest for South Africa-based controversial businessperson Frank Buyanga Read more

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01 Dec, 2022 | Posted By:
The High Court has set aside the cancellation of a warrant of arrest for South Africa-based controversial businessperson Frank Buyanga Read more

High Court judges Justices Pisirai Kwenda and Benjamin Chikowero have reinstated a warrant of arrest for South Africa-based controversial businessman Frank Buyanga Sadiqi after a successful application by the National Prosecuting Authority (NPA).

The NPA applied for review of Harare magistrate Judith Taruvinga's judgment that cancelled the warrant of arrest earlier this month.

 

 

 

 

FRANK BUYANGA SADIQI versus

THE STATE

HIGH COURT OF ZIMBABWE CHIKOWERO & KWENDA JJ

HARARE, 24, 25 and 30 November 2022

Criminal Review

KWENDA J:

Introduction

CHIKOWERO J and I heard oral submissions on the law in this matter because the law requires a judge to seek the concurrence of another judge before correcting proceedings of the lower court or tribunal. Where oral submissions are made, it is desirable for both judges to be present in case the Judges may both and each require clarification by counsel.

A story is told of the Arab and his camel. According to this classic tale, one cold night, a camel asked his master if he could put his head in the tent for warmth. "By all means and welcome," said the man; and the camel stretched his head into the tent. Soon after, the camel inquired if he could also bring his neck and front legs inside. Again, the master agreed. Finally, the camel asked, "May I not stand wholly within?" With pity, the master beckoned him into the warm tent. But when the camel entered it became clear that the tent was too small for them both. "I think," the camel said, "that there is not room for both of us here. It will be best for you to stand outside, as you are the smaller; there will then be room enough for me." And with that, the man was forced outside of his tent.

What is before us is a review of criminal proceedings following a process set in motion by me mero motu in terms of s 29(4) of the High Court Act [Chapter 7:06]. I could have reviewed the proceedings and if need be, obtained concurrence from another judge, peacefully in the comfort of my chambers. All hell broke loose when I decided to and did invite the legal practitioners who represented Frank Buyanga Sadigi and the State, in their capacity as officers of the court, to assist me with the legal issues which I had identified. As soon as they arrived, Frank Buyanga Sadiqi's legal practitioners, three in number, ganged up against me andpresented furious argument aimed at ejecting me from the review process, accusing me of bias.

If it was up to me and not a call of duty, I would have resolved never to do it again.

The legal practitioners applied for my recusal from the review process arguing that my conduct created apprehension that Frank Buyanga Sadigi may not receive a fair hearing. I had given priority to the review in terms of s 29(4) of the High Court Act ahead of the Court application filed by the Prosecutor General. I was guilty of judicial bias in that I had created, on an objective basis, the apprehension that justice may not be done. They were not questioning my impartiality but what mattered are the views of ordinary people. He cited Mcmillan & Ors V Provincial Magistrate 2004 ZLR (1)17 and Foyer and Matimba 1963 ZLR 318 (3) T322. He conceded that there was no animosity between Buyanga and myself but argued that my mental state as a judicial officer was irrelevant. What was important was that Buyanga felt that he would not receive a fair hearing. My integrity was irrelevant and was not being questioned. He argued that I was biased because my prima facie view was recorded in the memorandum which I addressed to the Registrar pointing out areas of concern and that view was recorded. He argued that s 29 (4) was only applicable where there were no able bodied people who could not assert their rights.

I dismissed the application for recusal. I believe that this court has the constitutional mandate to sit and adjudicate. It also has the constitutional mandate and jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions. See s 171(1)(b) of the Constitution.

All the issues raised are answered by the provisions of s 29(4) of the High Court Act which I quote below

«29 Powers on review of criminal proceedings

(4) Subject to rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review."

The provisions can be broken down as follows:

1. 4 udge can exercise povers of review mere b% 4 there abstRiond lions set out inSection 29(4) is invoked when it comes to the notice of a judge that criminal proceedings of any inferior court are not in accordance with real and substantial justice

  1. The power to review proceedings mero motu should only be exercised if the proceedings are not in accordance with real and substantial justice. In my view if the proceedings come to the notice of a judge through a newspaper report the view that proceedings are not in accordance with real and substantial justice would be on a prima facie basis and remain so until the judge peruses the record of proceedings
  2. If on perusal of the record the judge finds no legal basis to review the proceedings he or she may abort the process
  3. The proceedings to be reviewed do not have to be brought before him by way of court application or automatic review.
  4. In my view the judge ought to be open and transparent by giving reasons for calling for the record. In addition, contrary to Mr Mpofu's assertion of judicial bias, a judge calls for a record of proceedings in the inferior court or tribunal in terms of s 29(4) only if he considers them not to be in accordance with real and substantial justice. In my view it is inappropriate for a judge to invokes 29(4) without openly justifying that course of action.
  5. The process is subject to the rules of procedure in the High Court and a judge may at his or her discretion seek assistance from legal practitioners as officers of the court on the legal issues arising on review.

Even after I had dismissed the application for recusal Mr Mpofu insisted on what he termed preliminary issues or objections. One such objection was that the procedure in terms of which I had invited the lawyers to assist was contrary to the law. We pointed out that he was at liberty to reject the invitation whereupon he withdrew the submission and indicated that he wanted to be heard in argument. The other objection submitted as part of the supplementary heads of argument after we had reserved judgment was that we were precluded from rendering judgment I because Buyanga has appealed against my refusal to recuse myself. The preliminary objections not only lack merit but are vexatious. A preliminary objection is a procedure in terms of which a party to a party driven litigation objects at the hearing to an irregular step taken by his or her opponent. It is not expected that a lawyer would object to a judge driven process which is sanctioned by the High Court Act. The submission that we are precluded from rendering judgment in this matter is based on the law that execution of a judgment is suspended

 

by operation of law when the judgment is appealed against. In other words, the status quo is restored. In this case however the status quo prior to the application for recusal did not preclude us from reviewing the proceedings of the default enquiry. My dismissal of the application for recusal took us back to the original position where I had called for the record in terms of s 29

(4) of the High Court Act

Background

The following is the background to the proceedings on review, as revealed by the record now before us: -

On 16 April 2020 this court, per MANZUNZU J granted the following order against Frank Buyanga Sadiqi and other respondents in the matter of Chantelle Tatenda Muteswa v Frank Buyanga Sadiqi HC 2149/20. The parts of the order operating against Buyanga reads as follows: -

1. "¡" respondent (Frank Buyanga Sadiqi) be and is hereby ordered to return the minor child Daniel Alexander Sadiqi (born 14 August 2014) to applicant at Waterfalls Police Station within 24 hours of this order......

2.

3.

4. Failure of which, this order shall serve as a warrant of arrest for the IS respondent throughout Zimbabwe for him to be brought before this court to show cause why he should not be found in contempt of this court.to comply... with paragraph 1 of thi interim order"

Buyanga has not complied with the order which remains extant. Instead, he fled the jurisdiction. He is however very active in our courts, thanks to his legal practitioners.

2. On 22 April 2020 provincial magistrate J Y Y Taruvinga issued another warrant of arrest against Buyanga at the behest of the Zimbabwe Republic Police who are investigating crimes of Kidnapping, Robbery and Contempt of Court allegedly committed by Buyanga. The cases are recorded under CID Law and Order DR 07/04/20 (Waterfalls CR 3495 03/2020). The warrant of arrest could not be executed for two and half years because Buyanga is a confirmed fugitive from justice who has put himself beyond the criminal jurisdiction of this country. See Frank Buyanga Sadigi v Chantelle Muteswa & Ors CCZ14/21 where the Constitutional Court of Zimbabwe declared Frank Buyanga a fugitive who may not have audience in Zimbabwean courts and get relief in Zimbabwean courts umitristVFSE He RushtSuRprus and contempt of the Zimbabwean Superior courts whose ordefsikAMmsigidly refused to obey. The order reads: -

 

"In view of the applicant's (Frank Buyanga Sadigi) conduct in flagrant violation of various orders made by the Magistrates Court, High Court and the Supreme Court, this court accordingly withholds its jurisdiction to entertain the application in CCZ 19/21 and CCZ 21/21.

Both matters are struck off the roll with the applicant paying the costs of both applications on the scale of legal practitioner and client."

The above quoted order is unambiguous. Buyanga has defied all courts from the Magistrates court to the Constitutional Court, which is the highest court in Zimbabwe.

  1. In yet another case heard by this court Frank Buyanga Sadigi v Chantelle Tatenda Muteswa & Ors HH 281/20 MAFUSIRE J had no kind words for Buyanga. The following appears at p 1 of his judgment: -
    "Someone should spare a thought for Daniel Alexander Sadiqi ("the child"). No one can ever wish to share his experience. Certainly, not this court. It is the upper guardian of all minor children in Zimbabwe. Daniel is a minor. He was born out of wedlock. His father is the applicant ("Buyanga"). His mother is the first respondent ("Muteswa").
    They once stayed together. Now they are separated. Since then they have been at each other's throat, tussling for the child's custody, in the process, blindly lunging at each other with reckless abandon.
    Buyanga and Muteswa have practically played football with the child and have used the courts as their playground. The registry is clogged with their case. They have been to the magistrates' courts and the Children's Court. Now there are several appeals pending at the Supreme Court. No one seems spared: the police, immigration, the birth registry, government and even foreign airlines."
  2. Buyanga has appealed against the various orders that have been granted against him in the High court. In one such appeal he appeared before UCHENA JA in an application for condonation and extension of time within which to appeal. See Frank Buyanga Sadigi v Chantelle Muteswa & Ors SC 132/21. At p 3 of his judgment UCHENA JA also lashed at Buyanga's conduct in: -
    "Snatching the child and fleeing the jurisdiction of the court with him through undesignated exit points is in my view not in the best interests of the child."
    He added
    "The snatching of the child and keeping him away from his mother for fifteen months is not in the best interests of the child..."

S. Frank Buyanga still refused to produce the child but still appeared in the Supreme Court in a bid to overturn the High Court judgment. The Supreme Court decided that enough was enough and denied him audience based on the dirty hands principle. See Frank

Buyanga Sadigi v Chantelle Muteswa SC 275/19 handed down on 19 October 2021

where the following order was made: -

  1. "The point in limine concerning the dirty hands principle in relation to the appellant (Frank Buyanga Sadiqi) be and is hereby upheld
  2. This court accordingly withholds its jurisdiction
  3. The appellant shall pay the respondent's costs."
  4. On 11 November 2021 this court per MANGOTA J issued another warrant of arrest against Buyanga for his arrest for Contempt of court following his refusal to comply with this court's orders in case numbers HC 11865/19, HH 249/20 and HC 2149/20.
    The warrant of arrest remains extant and has not been executed because Frank Buyanga is on the run.
  5. In the year 2021 there were several efforts at coercing the Provincial Magistrate, J Y Taruvinga to cancel the warrant of arrest issued by her in connection with robbery, kidnapping and contempt of court charges. She refused to budge and steadfastly defended the warrant of arrest.
    In a letter to her superiors dated 21 June 2021, the provincial magistrate said she had properly issued the warrant in terms of s 33(1) (c) of the Criminal Procedure and Evidence Act Chapter (9.077. Her superiors were of the view that she ought not to have issued the warrant of arrest because the High Court had already issued another warrant per MANZUNZU J. They were wrong. The warrants issued by the High Court by both MANZUNZU J and MANGOTA J were a way of enforcing its orders following private law civil litigation. They were not issued for the purpose of Police investigations into crimes of robbery, contempt of court and kidnapping which is public law. It is trite the same set of facts can give rise to both civil litigation and criminal investigation. The warrant of arrest issued by JY Taruvinga was issued for the purpose of facilitating Police investigations into crimes of robbery, kidnapping and contempt allegedly committed by Buyanga.
  6. Pressure was also brought to bear on the Provincial Magistrate in written correspondence by Buyanga's legal practitioners, Messrs Rubaya and Chatambudza to the Commissioner General of Police, Prosecutor General and the Provincial Magistrate threatening to challenge the issuance of the warrant of arrest on review in the Superior courts.
  7. The threats were vigorously resisted by the Prosecutor General. In a letter addressed to the lawyers dated 1 August 2022, one_A

REGiSTRAR ÖF TAPRUHE BoRiriting for the ProsecutorGeneral, pointed out that Buyanga is a fugitive from justice who is wanted by the Police in connection with robbery, kidnapping and contempt of court and had lost his right to obtain relief in Zimbabwean courts.

"The Supreme court and Constitutional Court made final and definitive findings that your client was in breach of the above court orders. Wherefore it is not competent for you to request the removal of an Interpol red notice in the absence of your client purging the aforesaid contempt as well as motivating the complainant to withdraw the charges."

  1. Messrs Mutuso, Taruvinga and Mhiribidi, the legal practitioners representing Chantelle Muteswa in the criminal cases of contempt of court and kidnapping also protested. They complained in writing to Magistrate Taruvinga's superiors on 27 October 2022 about what they considered clandestine efforts to cancel the warrant of arrest issued to facilitate Police investigations into crimes allegedly committed by Buyanga. They contested the legality of the requested cancellation of the warrant in the absence of a review or appeal. They pointed out that Buyanga was a fugitive from justice who had been declared as such by Zimbabwean courts which had stripped him of the right of audience. Citing Denhere v Denhere CCZ 9/19 they argued that a magistrate court is bound by decisions of superior courts and could not possibly grant Buyanga relief in the face of the Constitutional court's pronouncement that Buyanga is a fugitive. They complained that the Court was in breach of the audi alteram partem rule by entertaining Buyanga without hearing the Zimbabwe Republic Police, Prosecutor General and the complainant, Chantelle Muteswa. In any event, the magistrates court had become functus officio when it issued the warrant of arrest and Buyanga could only get relief through an appeal or review both of which were out of time. Citing Articles 80 and 81 of the Interpol rules the lawyers argued that that the Interpol red notice could only be cancelled after the discharge of the grounds upon which the warrant of arrest was issued. The crimes of robbery, contempt of court and kidnapping were still under investigation.
  2. Magistrate Taruvinga eventually relented under the barrage of correspondence and disapproval by her superiors whereupon on 28 October 2022 she wrote to her superiors in which she pleaded as follows
    "…..I request that this matter proceeds by way of application and all interested parties be cited. The procedure is not expressly stated in the criminal procedure and evidence act hence this approach"Proceedings a quo
  3. It is against this background that Messes Rubaya and Chatambudza legal practitioners filed a written application for the cancellation of the warrant of arrest issued by Magistrate Taruvinga on 22April 2020. The application cited the State only. The lawyers did not cite the Zimbabwe Republic Police who hold the warrant of arrest and Chantelle Muteswa, who reported the alleged kidnapping and contempt of court charges. It may have escaped Magistrate Taruvinga's mind that her directive to cite all concerned had not been complied with because she heard and determined the application promptly without hearing interested parties. She made a brief ruling on the same day granting the application and cancelling the warrant of arrest. She granted the order in the following terms: -
  4. "The warrant of arrest erroneously issued against Frank Buyanga Sadiqi Ref CID Law & Order Hre DR 07/04/20 and Waterfalls CR 495/03/20220 issued on 22 April 2020 is HEREBY
  5. CANCELLED"
  6. She gave as her reasons that she had heard the application in chambers. She realised she had issued the warrant of arrest against Buyanga in error and because the High court order in case no HC 2149/20 remained extant and her warrant was misplaced. She held that the State's objection to her jurisdiction in the application for the cancellation of the warrant of arrest was misplaced because she had jurisdiction to cancel the warrant in terms of s33(4) of the Criminal Procedure and Evidence Act [Chapter 9.07] because she is the one who had issued it. She made the finding that Buyanga was not a fugitive because he had no pending case in Zimbabwe. She did not comment on the various judgments of the Constitutional Court, Supreme Court and High Court not obeyed by Buyanga which had been placed before her and form part of the record of proceedings. The ruling is dated 14 November 2022.

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