By Staff Writer
The sentencing of convicted businessmen Moses Mpofu and Mike Chimombe was further delayed on Monday to 1430 hours after their lawyers insisted they could not proceed without the written judgment, prompting Justice Pisirayi Kwenda to reserve his ruling.
Lovemore Madhuku, taking instructions from Ashiel Mugiya and representing Chimombe, made an oral application in terms of section 4 of the sentencing guidelines, arguing that “a copy of the written judgment of the copy that was read in court when they were convicted” was essential for a fair sentencing process.
“We are making the application in terms of sec 4 of the sentencing guidelines,” he said, adding that although there was no express procedure, the guidelines “give rights to accused persons.” He argued that the Constitution gives the accused the right to a fair trial, and without sight of the written judgment, “they will be unable to do proper mitigation and they will also be unable to respond adequately to the submission by the state on aggravation.”
He said this would “render their trial not fair,” stressing that the accused did not take notes and needed to “scrutinise the written judgment in the sense that it is relevant to the sentencing.” Said Madhuku: “It is a legal right of the applicant to get the judgment… The request made by the accused persons is clearly not out of this world.”
“The accused persons certainly need the judgment to make preparations for the next steps. If the court says it is not readily available, the accused can wait; they are already in custody,” he added, citing section 17(1)(c) which entitles an accused “to be given adequate time and facilities to prepare a defence.” He insisted, “The request we are making is not too much. The judgment gives reasons for the convictions and the reasons are relevant for sentencing.”
Tapson Dzvetero, representing Mpofu, concurred, saying proceeding without a written judgment would prejudice their clients. He said the law requires the court to produce its written judgment in accordance with legal provisions.
State counsel Whisper Mabhaudhi opposed the application, arguing that the law provides only one circumstance where sentencing cannot proceed and “there is nothing that can stop this court from sentencing the accused person.” He said the defence did not cite relevant sections 331 and 333, instead relying on section 4, “which is not applicable at all.”
Mabhaudhi submitted that the request amounted to seeking “further information,” yet the judgment had already been delivered in open court, where “parties were supposed to take notes,” and no undertaking was made to release a written judgment before sentencing. “The judgment which was delivered in the presence of the accused persons was final,” he said.
He argued the accused “do not require this judgment for any particular reason at all other than being a matter of preference,” adding that their lawyers’ notes “would suffice.” Issues about the degree of participation were “issues of appeal,” he said.
Mabhaudhi added that proceedings were livestreamed and the accused were “at liberty to go to YouTube where the proceedings were covered live… The judgment is available in a video format, which they are at liberty to listen to at their own time.”
Madhuku dismissed that argument, saying, “The accused persons do not have access to YouTube and we cannot take away the role they play in their own trial despite having lawyers.”
Justice Kwenda reserved the ruling to 1430 hours.
The pair was due for sentencing after being convicted of US$7 million fraud. Their sentencing has been repeatedly delayed, including after the State withdrew its earlier application for forfeiture of their properties.
-New Zw
