Chimombe Mpofu Case Delayed Again

The bail hearing of local businessmen Mike Chimombe and Moses Mpofu in prolonged pre-trial detention on charges US$7.7 million fraud in the US$88 million Presidential Goat Scheme was postponed today to 7 January 2025.

It had initially been postponed to 3 January 2025 – on 27 December 2024.

The case was postponed because Mpofu’s lawyer Tapson Dzvetero is still on holiday.

So even the Chimombe hearing could not go ahead as the cases are similar and should thus be heard concurrently.

The postponements came as lawyers say there has been repeated gross violation of the constitution, the law and some rules of the High Court on the procedural justice process in this matter.

In a constitutional democracy, bail is a right and legal mechanism which allows an accused to be released from detention before their trial if certain conditions, particularly that they will not abscond, are met.

The purpose of bail is to ensure the accused’s presence at future court hearings without punishing them unduly through pretrial detention.

Chimombe and Mpofu were arrested in June and have been in detention since then.

They have been repeatedly denied bail.

Their bail applications and hearings have been a long and winding road.

They have been denied bail on several occasions, and so they are trying again.

The two are currently seeking bail under altered circumstances after they were initially repeatedly thwarted.

The duo is arguing their arrest, detention, and prolonged pre-trial imprisonment violates their constitutional rights – the right to bail and to be heard without undue delays.

High Court Justice Pisirayi Kwenda has rejected their applications and claims, saying their arguments were “frivolous” as that should have been initially settled at the magistrates court.

As a result, Chimombe and Mpofu’s trial will continue on 10 February 2025.

Initially set for 17 January 2025 as the judge said he would be on holidays, the latest bail hearing was then brought forward to today after the defence led by Professor Lovemore Madhuku pointed out bail applications must be heard within 48 hours of filing of the application.The application must be disposed within 96 hours.

Defence got notice of bail hearing set for 17 January 2025 on 17 December 2024.

Madhuku argued that the date constituted undue delays and violation of applicants’ constitutional rights, and must be urgently addressed by the Judge President Mary Zimba-Dube.

The hearing was then subsequently set for 27 December.

However, the prosecution was not ready to argue the matter and then requested a postponement to today, which was agreed upon by both sides.

This development is the latest twist in a case that has seen multiple failed attempts by the duo to secure bail.

In the latest round of court battles, if Madhuku had not written to Zimba-Dube, raising serious violations of the law and warning it was untenable to further unduly delay the bail hearing, Chimombe and Mpofu would have been further prejudiced through more unprocedural hold-ups.

Madhuku and his lawyers applied for a fresh bail hearing on 13 December after their Constitutional Court referral application was dismissed by Kwenda on 5 December.

Five days later, on 17 December, High Court registar Brian Matomba wrote to Madhuku Lawyers:

“Take notice that the above Bail Application Pending Trial will be heard and determined by the HIGH COURT OF ZIMBABWE at Harare before Honourable Mr JusticeKwenda J on Friday, the 17th day of January 2025 at 10:00 or so soon thereafter as counsel may be heard. Dated at: Tuesday, the 17th day of December 2024, Harare.”

In response, on 20 December, Madhuku wrote to the registrar saying setting down the bail hearing for 17 January 2025 was an “undue delay” and a clear violation of the law – mandatory provisions (section 117A(3) of the Criminal Procedure and Evidence Act (Chap 9:07) and Rule 90(5) of the High Rules, 2021- which says bail applications must be disposed urgently, without “undue delay” and set down within 48 hours.

Bail applications must be disposed within 96 hours.

Madhuku said unless that was corrected, the setting down of the bail hearing for 17 January 2025 was going to infringe on the applicants’ basic constitutional rights – the rights to bail and personal liberty.

The defence lawyer also said the matter needed to be urgently brought to Zimba-Dube’s attention for remedy.

This led to the 27 December hearing and subsequent postponement to today, and further to next week Tuesday.

Prior to that on 24 December, another registrar Munashe Chibanda had written to Madhuku changing the dates from 17 January 2025 to 27 December 2024:

“Take notice that the above Bail Application Pending Trial will be heard and determined by the HIGH COURT OF ZIMBABWE at Harare on Friday, the 27th day of December 2024 at 10:00 or so soon thereafter as counsel may be heard.”

The complex twists and turns in the bail applications by Chimombe and Mpofu have raised concerns within the judiciary and among lawyers as scrutiny and concerns are raised in the background that judicial officers must not be engaged in such gross violations of procedural justice and fairness during the process of their work.

Lawyers say their decisions must always be based on the constitution, the law and rules without suspicious aberrations for whatever reasons – whether due to their interpretations, hidden agendas or vested interests – that set dangerous precedents.

A senior lawyer following the case, but not directly involved told The NewsHawks:

“During the hearing of the Chimombe and Mpofu constitutional referral application, which was dismissed, Justice Kwenda mentioned on several occasions that he wanted to pass judgement on 3 December 2024 as he would not be unavailable thereafter since he had a scheduled vacation that would keep him away from office until mid-February.

“Hence, the referral ruling was eventually passed against Chimombe and Mpofu on 5 December.Chimombe and Mpofu were seeking referral of their case to the Constitutional Court, raising several issues, including that the High Court had no jurisdiction to hear their case and also complaining about the ages of the assessors for their trial, which they said violated the law.

“They said the assessors were above retirement age.But Kwenda said their constitutional issues should have been raised at the magistrate’s court when they initially appeared for remand.

“He also said the issue of assessors being above retirement age lacked merit.At that point, the defence gave the judge notice for bail application on 5 December soon after reading of the judgement.

“Kwenda responded by saying that he would not be able to handle the case as he had already indicated before that he was going away on vacation.

“The defence team argued that in as much as they appreciated the judge had a prior vacation schedule, bail issues as outlined in the constitution are urgent matters and cannot wait for the judge to go on holiday and come back; they must be treated with urgency – without undue delay – (meaning they must be addressed within 48 hours and disposed within 96 hours).

“They indicated the High Court registrar could allocate the bail hearing matter to any other available judge in Kwenda’s absence.At that point the judge then authorised the defence team to go ahead and file for bail.

“The defence counsel duly filed the bail application on 13 December 2024, but to their surprise they received their bail set down on 17 December – which is five days later – indicating Kwenda would preside over the bail hearing on 17 January 2025, meaning 35 days after the application; over a month later.

“This also means the judge decided to cut short his holidays to come back and hear the bail application even though he had said at the referral judgement that he would be on vacation until mid-February.

“This raises an interesting dimension; why did the judge find it necessary to come back after he had said he was going on holidays; so either he is dedicated to the case, he is a hard worker to the extent of interrupting his vacation to come back to hear the bail application, or he has a vested in the case.

“He can’t leave it to anyone else.Without casting aspersions on the judge or the judiciary, or anyone for that matter, this issue needs to be scrutinised.

“It’s very important for the ends of justice and for procedural justice.As a remedy on Kwenda’s undue delays, the Judge President (Zimba-Dube) through due processes got the issue addressed by bringing forward the bail hearing from 17 January to 27 December, and then subsequently today after initial postponement, but even then that is still above the legal 96 hours requirement to dispose of the matter.

“So that did not correct the violations of the law and the applicable rule. You can’t correct violations through other violations.

“The application was filed on 13 December, which means it must have been disposed on 16 December.

“If the prosecution asked for postponement it must also not result in undue delays.

“So the whole process was flawed from the start and I’m raising this because it sets a wrong precedent and undermines fairness in criminal justice system.”

The lawyer continued:”What we mean by procedural justice is how fair judicial processes are, and how people’s perception of fairness is strongly impacted upon by the quality of their experiences, not only the end result of those experiences.

“Procedural justice theory has been applied to various settings, including supervisor-employee relations within companies, organisations, educational settings, and the criminal justice system.

“In the criminal justice system context, most procedural justice research and experience have demonstrated that procedural justice is critical for building trust, ensuring fairness and legitimacy of the judiciary.

“This has an impact on the integrity and credibility of judges.In other words, that has some paramount implications for both the judge concerned and the judiciary itself.

“This is not a legal or academic argument on behalf of Chimombe and Mpofu, I’m not their lawyer, but one on procedural justice whose four pillars include voice, integrity, neutrality and trustworthiness.

“Voice: Individuals are given a chance to express their concerns and participate in decision-making processes by telling their side of the story.

“That is a basic principle of natural justice.In this case, Chimombe and Mpofu’s voices must be heard and considered on procedural issues which they are raising.

” They were partially heard, but the remedy fell short of the requirements of the law and the rules. That is why Madhuku complained and got some partial remedy or reprieve, although it was inadequate.

“Respect: All individuals are treated with dignity and respect. You do not have to like or dislike the applicants or the accused as a judicial officer or lawyer, they have to be treated with dignity.

“Neutrality: Decisions by judicial officers must always be impartial or unbiased, guided by the constitution, the law and rules based on sound, consistent and transparent reasoning.

“Trustworthiness: Judges should convey trustworthy motives and concern about the well-being of those impacted by their decisions, not act irresponsibly and with impunity in their duties.These issues are important and radiate through the Chimombe and Mpofu case.”

The case continues on Tuesday next week.