Supreme Court upholds conviction, sentence of council bosses

Fidelis Munyoro, Chief Court Reporter

THE Supreme Court has confirmed the conviction and six-year jail terms imposed on two Harare City Council heads of department over their attempt to sell Mount Pleasant Sports Club and golf course to a private developer.

Finance director Stanley Ndemera and chamber secretary Charles Kandemiri will now have to complete serving their sentences after their appeals found no favour with the court of final appeal.

The two had approached the Supreme Court challenging both conviction and sentence on charges of criminal abuse of office before the three-judge appeals panel of Justice Lavender Makoni, Justice Felistus Chatukuta and Justice Hlekani Mwayera.

However, after hearing submissions by both the defence and prosecution counsel, the judges unanimously rejected the appeals by both Ndemera and Kandemiri, without giving immediate reasons which will follow later.

“We have agonised over the matter and we make the following order: The appeal against both conviction and sentence of Stanley Ndemera be and is hereby dismissed. The appeal against both conviction and sentence of Charles Kandemiri be and is hereby dismissed,” said Justice Makoni reading the operative part of the court’s judgment.

She said that the full reasons for the court judgment would be availed in due course.

The court of appeals makes its decision based solely on the trial court’s case record, the trial court having uncovered the facts and received the evidence. An appeal does not receive additional evidence or hear witnesses.

The court of appeals may review the factual findings made by the trial court, but generally, may overturn a decision on factual grounds only if the findings were clearly erroneous.

In October last year, the two lost their bid for leave to appeal against both conviction and sentence after High Court Judge Justice Pisirayi Kwenda, who presided over the separate applications by the two, found no merit in either and tossed them out.

Since the trial judge had rejected their leave to appeal, the two had no automatic right of appeal, but could still apply to the Supreme Court to see if the judges there were willing to hear an appeal. They applied and the Supreme Court agreed to hear their appeal.

In the High Court, Justice Kwenda ruled that both Ndemera and Kandemiri had no reasonable prospects of success on appeal. The two were charged alongside former mayor Herbert Gomba and town clerk Hosea Chisango.

These two co-accused were acquitted on the basis that their involvement was so minimal that no criminal liability could be attached to them.

In discharging the two, Justice Kwenda noted that they only signed the agreement of sale as a matter of policy because their assumption was that everything was done above board.

The trial court heard that Ndemera and Kandemiri sold the council-owned Mt Pleasant Sports Club in Vainona, including the golf course, without following procedure.

Their actions, the judge ruled, were deliberate. The golf course was sold to Hardspec Investments for $23 923 340 while the club was quoted at US$2,3 million.