HARARE – Prominent Harare lawyer Admire Rubaya has been cleared of any wrongdoing following his successful Supreme Court appeal against a decision by the lower courts to try him and three others for allegedly defeating the course of justice after a gold theft trial involving a different party.

Rubaya was jointly charged with a Plumtree magistrate, a prosecutor and a police officer.

A bench comprising Justices George Chiweshe, Chinembiri Bhunu and Hlekani Mwayera upheld their appeal, ruling that the lower court had misdirected itself when it made its decision.

The court also acquitted magistrate Timeon Makunde.

The background is that Rubaya represented one Jefat Chaganda before Makunde who acquitted him of gold smuggling.

Makunde also ordered the release of the gold back to Chaganda.

However, suspecting foul play in the case, the State preferred theft charges, alternatively, obstruction of justice against every official who was involved in the case.

The four were Rubaya, Makunde, the prosecutor and police officer in charge of minerals.

Rubaya’s lawyers Advocate Thabani Mpofu, Oliver Marwa and Tymon Tabana said the charge was “irregular” and a case of victimisation of the legal practice, violating the client-attorney privilege.

“It is respectfully submitted that the prosecution of the appellant offends against the attorney-client privilege that obtains between the appellant and the second accused (Chaganda).

“Legal professional privilege is an established principle of our law that goes to the root of a fair trial as entrenched by section 69 of the Constitution,” they argued.

The lawyers mounted an application for exception which the High Court dismissed before they took the decision up for review by the Supreme Court.

The arguments pushed the State into making concessions.

In their appeal, the lawyers pointed out that the High Court judge made concessions that the charge against Rubaya was defective but still allowed the matter to proceed which they described as a misdirection.

“There can be no doubt that the court a quo was not satisfied that a valid charge existed. It is that finding which appellant wanted it to make and to pronounce itself on its effect. By our law, an accused person cannot be expected to go through a trial where no valid charge exists. That is an irregularity,” he argued.

Mpofu’s argued that the acquittal of Chaganda by the magistrate had nothing to do with his client and whether the decision was correct or not could not be attributed to him.

He also argued that the decision by the magistrate is still standing which made it valid and had they had an issue, it would have been overturned.

“In the instant case what is revealed is that appellant (Rubaya) represented an accused person who was acquitted, and that the court acquitting the appellant’s client also ordered the release of the gold.

“Whether or not it was competent for the Learned Magistrate to make such an order is irrelevant, as the conduct of the Magistrate is not imputable to the appellant and no basis has been alleged for taking that position,” Mpofu argued.

Mpofu said the State was trying to nail his client and his co-accused by any means necessary, disregarding the provisions of the law.

“The prosecution by some clumsy process, is trying to reason backwards in order to conclude that an offence or offences were committed. In other words, because the appellant made certain telephone calls or was seen with some of the accused persons after the acquittal of his client and after the amgistrate had ordered the release of gold then he must have connived to steal the gold or to defeat or obstruct the course of justice!

“With the greatest respect, the essential facts constituting the offence must be present at the time that the offence is committed, and cannot be inferred from conduct post the event giving rise to the charge,” he argued.

Further argument was that whatever the State was doing did not disclose any offence of theft or obstruction of justice.

“If anything, what seems to be alleged is that merely because the person accused of smuggling gold was acquitted and the magistrate ordered the release of the gold, then everyone who interacted with the trial proceedings must be found to be guilty of the offences charged,” he said.

The lawyers said the judge erred in not finding that there was no offence being disclosed by the charge.

“The court a quo erred in failing to find that the criminal prosecution is meant to be an impermissible review, through the criminal process, of completed magistrate’s court proceedings.

“The court a quo also erred in failing to decide the issue before it, namely, whether it was competent at law for the appellant to be required to account in criminal proceedings for a defence he had prosecuted on behalf of a client who still stood by the same defence and not renounced it.”