By A Correspondent | ZimEye| TOP Harare lawyer Admire Rubaya is now a free man after the Supreme Court cleared him from a criminal charge of gold theft, a case that also involved a Plumtree Magistrate, a prosecutor, and a police officer in charge.
Rubaya had represented one Jefat Chaganda before Plumtree regional magistrate Timeon Makunde, and Chaganda was acquitted of gold smuggling. Following this, the court ordered the return of the gold to Chaganda.
The State then charged everyone involved in the case, including Rubaya, the magistrate, and the prosecutor, with theft or alternatively, obstruction of justice.
Rubaya’s legal team, comprising Advocate Thabani Mpofu, Oliver Marwa, and Tymon Tabana excepted to the charges but did not find favourt with the High Court.
Through his lawyers Rubaya argued that this was an instance of victimizlsation within the legal profession, violating the attorney-client privilege.
“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,” said the lawyers.
After the High Court’s decision, Rubaya filed the present appeal whichnwas heard by Supreme Court bench, including Justices George Chiweshe, Chinembiri Bhunu, and Hlekani Mwayera, accepting their arguments and exonerating Rubaya of any wrongdoing.
The Supreme Court also acquitted Magistrate Makunde.
In their appeal before the Supreme Court, Rubaya’s lawyers pointed out that the High Court had conceded that the charge against Rubaya was defective but still allowed the case to move forward, which they deemed a misdirection.
Mpofu contended that the acquittal of Chaganda had no bearing on Rubaya’s actions and insisted that whether the magistrate’s decision was correct was not something to be attributed to his client, especially since the decision still stands.
“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,” the lawyer argued.
He further accused the State of attempting to unfairly prosecute his client and co-accused, ignoring legal principles.
Mpofu descrined the state as “clumsy” for 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 Magistrate 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 said.
Mpofu added, “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.
The lawyers contended that the judge erred by not recognizing that no offense was disclosed by the charges.
“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 defense he had prosecuted on behalf of a client who still stood by the same defense and not renounced it.”