MAWERE v MINISTER OF JUSTICE 2008 (2) ZLR 140 (S)

Flynote

Constitutional law “ Constitution of Zimbabwe 1980 “ Declaration of Rights “ s 18 “ right to protection of the law “ administrative decisions “ constitutional right to challenge such decisions

Criminal procedure “ specification in terms of Prevention of Corruption Act D [Chapter 9:16] “ whether Minister obliged to notify person affected of his intention to declare him to be a specified person “ extra-territoriality of specification “ whether Minister entitled to declare non-resident of Zimbabwe to be a specified person “ such person having assets and controlling companies within Zimbabwe “ Minister entitled to declare him to be a specified person

Practice and procedure “ parties “ locus standi “ fugitive from justice “ what must be shown for person to be regarded as fugitive from justice

Practice and procedure “ parties “ locus standi “ person specified in terms of Prevention of Corruption Act [Chapter 9:16] “ need for investigator's approval to expend assets “ whether person may be prevented from challenging correctness of investigator's decision

Statutes “ Prevention of Corruption Act [Chapter 9:16] “ s 6 “ specification in terms of Act “ person affected not a citizen of Zimbabwe “ citizenship not necessary for specification of a person “ powers of Minister to declare person to be a "specified person" “ jurisdictional facts which must existbefore a person is so declared “ natural justice “ person directly affected by impending inquiry “ fundamental requirements of natural justice in relation to a specified person

Words and phrases “ "fugitive from justice" “ meaning of

Headnote

The appellant, a sometime citizen and resident of Zimbabwe, was a businessman residing in South Africa. On 9 July 2004, by notice in the Government Gazette, the respondent Minister declared him to be a "specified person" in terms of s 6 of the Prevention of Corruption Act [Chapter 9:16], in order to facilitate an inquiry by an investigator into the appellant's business affairs in Zimbabwe. The Minister had information that a company controlled by the appellant had externalized funds from Zimbabwe and that a South African company, in which he had an interest, had failed to remit to that Zimbabwean company its export proceeds. The appellant complained that he was unaware of any intention to declare him a "specified person", which declaration was impacting adversely on his business activities in South Africa and elsewhere in the world. Unsuccessfully he had sought a review of the respondents declaration before the High Court. On appeal to the Supreme Court, it was argued on his behalf, inter alia, that the Act had no application to him as he had ceased to be a Zimbabwean citizen and was no longer resident in the country. It was also argued that he should have been granted the right to be heard before the Minister declared him to be a "specified person" and the Minister had ignored the fundamental requirements of natural justice towards him. He also pressed the point that the jurisdictional facts that had to exist before the Minister could so declare him, did not exist.

Besides opposing the arguments advanced by the appellant, the Minister took two points in limine. On his behalf, it was argued that the appellant had no locus standi to bring the matter on review as he had no authority from the investigator before engaging in anything which might affect his estate, as required by s 10 of the Act and that, in any event, having fled the country, he was a fugitive from justice.

Held, that the appellant did have locus standi to bring that action. It had not been shown that in instituting his action from South Africa, the appellant was expending any of his assets in Zimbabwe. The investigator had no jurisdiction over any of appellant's assets outside the country

Quaere, whether, in any event, the appellant could be deprived of a constitutional right to challenge an administrative decision such as that in casu.

Held, further, that for the court to hold that the appellant was a fugitive from justice, it would have to be shown that he had left Zimbabwe with the intention of fleeing and had deliberately put himself beyond the jurisdiction of the court to avoid any legal action that might be brought against him.

Held, further, that it was irrelevant whether a person was a resident or a citizen of another country as long as that person had done one of the things mentioned in s 6(1) of the Act. The appellant could not avoid being investigated simply because he was not a citizen or a resident of Zimbabwe.

Held, further, that the fundamental requirements of natural justice to which a person directly affected by an impending inquiry are:

• (1) the right to have notice of the charge or complaint; and

• (2) the right to be heard; and

• (3) the right to be given the opportunity to state his case.

Held, further, that the foregoing requirements were met. Due notice of the specification was provided in the Government Gazette of the 9 July 2004, and the appellant was to appear in due course before the investigator and would have the opportunity to present his case fully before him.

Held, further, dismissing the appeal, that the jurisdictional facts upon which the Minister had to rely need not be proved or concrete facts. All that was required were facts upon which he could form an opinion. When the investigator considered the matter, in the course of which the appellant could fully present his case, the truth or otherwise of the information laid before the respondent would be determined.