CHIADZWA v COMMISSIONER-GENERAL OF POLICE & ORS 2011 (2) ZLR 241 (H)

Flynote

Criminal procedure — forfeiture — article forfeited at conclusion of criminal case — conviction set aside — possession of article an offence — former possessor not entitled to have article returned to him

Legal practitioner — conduct and ethics — communication with judge — impropriety of contacting judge directly — correct course of action where joinder in proceedings sought

Practice and procedure — parties — joinder — non-joinder — not fatal to application — application for joinder — correct method of making application — impropriety of indirectly seeking joinder by complaining of non-joinder in letter to judge

Headnote

The applicant had been convicted of possession of diamonds, which were, following his conviction, declared forfeit to the State. The conviction was quashed on review. The applicant then sought an order under s 61(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] for the return of the diamonds, and their transmission, via the Registrar, to the Minerals Marketing Corporation of Zimbabwe.

None of the cited respondents bothered to defend the action. Neither the Attorney-General nor the Minister of Mines was cited by the applicant. However, the Attorney-General wrote a letter to the judge, complaining of not having been joined as a party.

Held, that under r 87(1) of the High Court Rules 1971, no cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party. In any event, the provisions of s 8 of the State Liabilities Act [Chapter 8:14] disabled the court from mero motu raising issues to do with non-compliance with s 6 of the Act.

Held, further, that once a matter has been argued before a court and is awaiting judgment or determination, there should be no direct communication with the presiding judge over the merits or demerits of that case. To do so would be an attempt to influence the decision of the court using unorthodox and unprofessional means. The Attorney-General's approach was a desperate attempt to influence the decision of the court by addressing the court through the back door. It was both unethical and unprofessional to do so. If the Attorney-General felt the applicant had unfairly treated his office or that his office had an interest in this matter, the proper course of action would have been formally apply for joinder in these proceedings in order to create a proper platform for him to be heard.

Held, further, that, given the security risk associated with the diamonds, the Registrar could not assume their custody, given that hitherto he had never enjoyed such custody. Even if he had enjoyed such custody, he would have become functus officio the moment the order for forfeiture was pronounced. It would therefore not be competent for the Registrar to accept the diamonds merely to pave way for the applicant to lay his claim to them.

Held, further, that s 3 of the Precious Stones Trade Act [Chapter 21:06] inter alia would criminalise possession of the diamonds by the applicant. To return the diamonds to the applicant would be to sanction the commission of an act of illegality on the part of the applicant, and such an order would thus not be competent.