Chivayo court record nears com­ple­tion

Chronicle (Zimbabwe) - - National News - Daniel Ne­mukuyu Harare Bureau

RE­CON­STRUC­TION of the miss­ing money laun­der­ing court record that is vi­tal in an ap­peal by busi­ness­man Mr Wick­nell Chivayo has com­menced in com­pli­ance with a re­cent Supreme Court di­rec­tive.

The Supreme Court di­rec­tive fol­lowed the dis­cov­ery of some four note­books used by a High Court judge in Chivayo’s trial and con­vic­tion.

The notes were found more than 10 years after the dis­ap­pear­ance of the orig­i­nal court record.

Chivayo had since ap­plied for ac­quit­tal on ap­peal on the ba­sis that the record was miss­ing and that re­con­struc­tion was no longer pos­si­ble.

Re­cently, the Supreme Court gave the reg­is­trar of the High Court up to 30 days to re­con­struct the record ahead of the new hear­ing date of the ap­peal.

“The reg­is­trar of the High Court shall re­con­struct the record un­der case num­ber CRB195/03 with the as­sis­tance of both par­ties and the trial judge within 30 days.

“It is or­dered that the reg­is­trar of the Supreme Court sets down this mat­ter on the next avail­able date upon re­con­struc­tion of the record un­der CRB 195/03,” ruled Jus­tice Anne-Mary Gowora.

Our Harare Bureau is re­li­ably in­formed that the re­con­struc­tion of the dummy record is al­most com­plete.

Chivayo is fight­ing to have his 2005 con­vic­tion on money laun­der­ing quashed by the Supreme Court de­spite hav­ing fully served the three-year prison term im­posed on him.

He was jailed five years in 2005 for money laun­der­ing, which in­volved R837 000, by the High Court.

Two years were con­di­tion­ally set aside, leav­ing him to serve an ef­fec­tive three years in prison.

He ap­pealed to the Supreme Court against both con­vic­tion and sen­tence, but his ap­peal could not be heard since 2005 after it emerged that some pa­pers were miss­ing from his court record.

In the heads of ar­gu­ment filed re­cently, Chivayo ar­gued that the con­vic­tion was in­con­ve­nienc­ing him and that it must be quashed.

Chivayo ar­gued that since some pa­pers were miss­ing from the court record, cou­pled with the fact that re­con­struc­tion of the same record as di­rected by the late Jus­tice Wil­son San­dura some 11 years ago has not been done, he was en­ti­tled to an ac­quit­tal.

The de­lay in the fi­nal­i­sa­tion of the ap­peal, the lawyers ar­gued, was a breach of the Con­sti­tu­tion.

“The ab­sence of the record is at any rate, a breach of Sec­tion 70 ( 5) of the Con­sti­tu­tion of Zim­babwe.

“The de­lay in the fi­nal­i­sa­tion of the ap­peal con­sti­tutes a breach of ap­pel­lant’s right to a fair hear­ing within a rea­son­able pe­riod as set out un­der Sec­tion 69 (1) of the Con­sti­tu­tion of Zim­babwe,” ar­gued Chivayo.

The de­lay, it is ar­gued, also con­sti­tutes a breach of his right to ac­cess a court as set out un­der Sec­tion 69 (3) of the supreme law.

Chivayo fur­ther ar­gued his rights to hu­man dig­nity and free­dom from tor­ture or cruel, in­hu­man or de­grad­ing treat­ment as en­shrined un­der Sec­tions 51 and 53 of the Con­sti­tu­tion were also vi­o­lated.

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