RECONSTRUCTION of the missing money laundering court record that is vital in an appeal by businessman Mr Wicknell Chivayo has commenced in compliance with a recent Supreme Court directive.
The Supreme Court directive followed the discovery of some four notebooks used by a High Court judge in Chivayo’s trial and conviction.
The notes were found more than 10 years after the disappearance of the original court record. Chivayo had since applied for acquittal on appeal on the basis that the record was missing and that reconstruction was no longer possible.
Recently, the Supreme Court gave the registrar of the High Court up to 30 days to reconstruct the record ahead of the new hearing date of the appeal.
“The registrar of the High Court shall reconstruct the record under case number CRB195/03 with the assistance of both parties and the trial judge within 30 days.
“It is ordered that the registrar of the Supreme Court sets down this matter on the next available date upon reconstruction of the record under CRB 195/03,” ruled Justice Anne-Mary Gowora.
The Herald is reliably informed that the reconstruction of the dummy record is almost complete.
He was jailed five years in 2005 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 Chivayo.
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. herald