Daniel Nemukuyu Senior Court Reporter
Controversial businessman Wicknell 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.
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.
Through his lawyers Advocate Thabani Mpofu and Mr Wilson Manase of Manase and Manase Legal Practitioners, Chivayo this month revived his bid for acquittal by filing supplementary heads of argument.
In the heads of argument, 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.
“No record has been prepared. Appellant has fully served the imposed term of imprisonment. There is no prospect that the appeal will ever be heard. The conviction, however, remains a huge inconvenience to the appellant.
“There is something fundamentally wrong with this state of affairs,” argued Chivhayo’s lawyers.
“The absence of a record of proceedings is a fatal irregularity given that the High Court is a court of record.
“When faced with an incomplete record of proceedings, this court has no option but to quash the proceedings a quo.”
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.
Chivhayo 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.
The matter is yet to be set down for hearing at the Supreme Court.
Allegations against Chivhayo arose on July 4 and 5 in 2002 when he allegedly received R837 000, which was part of proceeds of a crime.
The money was in form of three cheques, which he deposited into his bank account.
Chivhayo pleaded not guilty to the charges but the High Court found him guilty and slapped him with a prison term on August 4 2005.
The High Court dismissed Chivhayo’s application for leave to appeal on the basis that there were prospects of success in the challenge.
However, the late Supreme Court Judge Justice Wilson Sandura allowed him to lodge the appeal.
Bail pending appeal was dismissed resulting in Chivhayo serving the prison term without being heard on appeal.