Daniel Nemukuyu Harare Bureau
FOUR notebooks used by a High Court judge in the trial and conviction of businessman Mr Wicknell Chivayo were this week found and the court record that went missing in 2005 will now be reconstructed to enable the Supreme Court to properly deal with the mogul’s appeal.

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

The discovery came at a time Mr Chivayo had applied for an acquittal on the basis of the unavailability of the record. It was also being argued that reconstruction of the record was no longer possible.

Mr 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. On Thursday, law officer Mrs Sharon Fero sought a postponement of the matter to allow the registry to reconstruct the record.

“We approached the registrar of the High Court for an update on the reconstruction of the record as per 2008 directive by the late judge of appeal Justice Wilson Sandura.

“We were shown the record but it was in a bad state as some of the pages were missing. However, the Deputy Registrar of the High Court (Mr Godfrey Unzemoyo) said they had since found the judge’s notes and reconstruction could now be easily done,” said Mrs Fero.

The registrar’s report filed at the Supreme Court reads: “We collected the transcribed record from the National Archives. This record, however, has missing pages.

“In order to cover the gaps, we have found the honourable judge’s notebooks and we are reconstructing the record from those notebooks.”

The registrar will be able to submit the complete record to court in a month’s time, the report reads.

Advocate Thabani Mpofu, who was being instructed by Mr Wilson Manase of Manase and Manase Legal Practitioners, consented to the postponement but the court is expected to issue a directive to the registrar of the High Court soon.

Chivayo was in 2005 jailed five years 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 Chivhayo.

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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