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Supreme Court dismisses Tomana's appeal against acquittal of Bennett
Zimbabwe Lawyers for Human Rights (ZLHR)
March 10, 2011

Chief Justice Godfrey Chidyausiku on Thursday 10 March 2011 dismissed an appeal filed by Attorney General Johannes Tomana contesting the acquittal of tormented Movement for Democratic Change (MDC) treasurer Roy Bennett.

Tomana in May 2010 filed a chamber application in the Supreme Court seeking leave to appeal against High Court Judge, Justice Chinembiri Bhunu's decision to acquit Bennett, the deputy agriculture minister-designate, at the close of the State's case.

Chris Mutangadura, the chief law officer in the AG's Office who filed the application on Tomana's behalf had argued in his papers that Justice Bhunu had misdirected himself when he acquitted Bennett in that he assessed pieces of evidence in isolation rather than adopting a holistic analysis of the admittedly circumstantial evidence adduced by the State.

Mutangadura said Justice Bhunu had erred in adopting a piecemeal approach to evaluate the weight of evidence brought before him by the State, whose prosecution team was led by Tomana, assisted by Mutangadura and Florence Ziyambi, the Director of Public Prosecutions in the AG's Office. The AG's chief law officer said the existence of a bank account in Mozambique in Peter Michael Hitschmann's name, the email communication between Hitschmann and Bennett, and the emails allegedly containing messages pointing to the funding of firearms acquisition all pointed to a conspiracy between the two men.

Mutangadura said Justice Bhunu's finding that the emails found on Hitschmanns' laptop were inadmissible was outrageous and hence his arguments had high prospects of success on appeal.

But Chidyausiku on Thursday 10 March 2011 dismissed Tomana's appeal after ruling that there were no prospects of success.

"In the result, I agree with the conclusion of the learned Judge in the court a quo that this was a proper case in which a discharge in terms of s 198 (3) of the Criminal Procedure and Evidence Act (Chapter 9:07) was appropriate. I see no prospect of the Supreme Court coming to a conclusion different from that of the court a quo. As there are no prospects of success on appeal, leave to appeal against the decision of the court a quo is refused," reads part of the judgment, which was delivered on Thursday by Chidyausiku.

Bennett, who had been on trial since October 2009 on charges of insurgency, banditry, terrorism and sabotage, was acquitted in May last year after Justice Bhunu ruled that the State's prosecution team, led by Tomana, had failed to establish a prima facie case against the former Chimanimani Member of Parliament.

Justice Bhunu has sued Bennett for $1 million in damages for defamation. Bhunu's lawyers allege that the damages resulted from wrongful and defamatory words which were uttered by the former commercial farmer during an interview with a reporter from The Guardian newspaper of the United Kingdom, which he granted in May last year, before the High Court Judge delivered his judgment acquitting the former Chimanimani legislator. Bennett denies the charges.

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