Chop­per crash pi­lot fights pro­hi­bi­tion

Chronicle (Zimbabwe) - - National News - Mashudu Net­sianda Se­nior Court Re­porter

THE Supreme Court has re­served judg­ment in a mat­ter in­volv­ing South African busi­ness­man, Mr Fred­er­ick Lutzkie, who is chal­leng­ing the department of im­mi­gra­tion’s de­ci­sion to de­clare him a pro­hib­ited per­son in the coun­try.

Mr Lutzkie (54), in his ap­peal through Ad­vo­cate Firoz Girach who was in­structed by Ma­joko and Ma­joko Le­gal Prac­ti­tion­ers, cited the prin­ci­pal direc­tor of im­mi­gra­tion Mr Cle­mence Masango as the re­spon­dent.

The South African busi­ness­man was last year de­clared a pro­hib­ited per­son for con­tra­ven­ing sec­tions of the Civil Avi­a­tion Act and the Im­mi­gra­tion Act.

His crimes in­cluded fly­ing with­out per­mis­sion from the Civil Avi­a­tion of Zim­babwe and fraud­u­lently ac­quir­ing an en­try and exit stamp at Beit­bridge border post.

Mr Lutzkie made head­lines two years ago fol­low­ing his in­volve­ment in a he­li­copter crash at Dod­dieburn Ranch in West Ni­chol­son that raised a lot of eye­brows after he al­legedly buried the wreck­age of the chop­per.

He was sub­se­quently ar­rested and con­victed on his own plea of guilty to 14 counts of con­tra­ven­ing sec­tions of the Civil Avi­a­tion Act and the Im­mi­gra­tion Act by Harare mag­is­trate Mr Vakayi Chik­wekwe who sen­tenced him to seven years in jail.

How­ever, the High Court in May last year quashed the prison term on ap­peal and or­dered him to pay $400 for each of the 14 counts on which he was con­victed.

Mr Lutzkie, through his lawyers, filed an ap­peal at the Supreme Court chal­leng­ing the de­ci­sion to bar him from en­ter­ing the coun­try.

In his heads of ar­gu­ment, Adv Girach con­tended that his client’s pro­hi­bi­tion in the coun­try was premised on a sen­tence which the High Court set aside.

“It is com­mon cause that the sen­tence of im­pris­on­ment im­posed on the ap­pel­lant by the mag­is­trate’s court was over­turned on ap­peal and sub­sti­tuted with a fine. The dec­la­ra­tion of pro­hi­bi­tion is con­se­quent to a sen­tence of im­pris­on­ment with­out the op­tion of a fine and there­fore a sen­tence to pay a fine can­not trig­ger a dec­la­ra­tion for pro­hi­bi­tion,” he ar­gued.

“When the sen­tence of im­pris­on­ment was set aside, by op­er­a­tion of law and au­to­mat­i­cally, the dec­la­ra­tion of pro­hi­bi­tion fell away.”

Lawyers from the Civil Divi­sion in the At­tor­ney-Gen­eral’s Of­fice, who were rep­re­sent­ing the prin­ci­pal direc­tor of im­mi­gra­tion, op­posed the ap­peal. They ar­gued that the is­sue of pro­hi­bi­tion hinged on Mr Lutzkie’s con­vic­tion.

“While the sen­tence of im­pris­on­ment was over­turned on ap­peal, ap­pel­lant was sen­tenced to a fine on each count and that alone is a con­vic­tion in our sub­mis­sions. The High Court sim­ply min­imised the sen­tence and did not take away the whole sen­tence and con­vic­tion and there­fore sec­tion 14(1) (e) of the Im­mi­gra­tion Act ap­plies. Where­fore we pray for the dis­missal of the ap­pel­lant’s claim,” said the lawyers from the AG’s of­fice. They said there was no merit in the ap­peal, ar­gu­ing that Mr Lutzkie was a pro­hib­ited per­son in terms of sec­tion 14 of the Im­mi­gra­tion Act.

“It is not in dis­pute that the ap­pel­lant breached the Im­mi­gra­tion Act as well as the Civil Avi­a­tion Act, and as to whether he is pros­e­cuted for such breach is not a rel­e­vant con­sid­er­a­tion. The fact re­mains that he is a pro­hib­ited im­mi­grant in terms of the law,” said the AG’s Of­fice.

The busi­ness­man, who said he has in­vested $2.3 mil­lion in a joint sa­fari business ven­ture, has pre­vi­ously al­leged that a se­nior Gov­ern­ment of­fi­cial was us­ing his po­si­tion to frus­trate him and grab his ranch near West Ni­chol­son. Supreme Court judge Jus­tice Padding­ton Garwe, sit­ting with Jus­tice An­nie Marie Gowora and act­ing judge of ap­peal Jus­tice Fran­cis Bere dur­ing a cir­cuit in Bu­l­awayo, re­served judg­ment after hear­ing ar­gu­ments from both par­ties. — @mash­nets

Mr Fred­er­ick Lutzkie

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