Online Reporter
Fidelis Munyoro
Chief Court Reporter
Harare lawyer Admire Rubaya was yesterday acquitted of a criminal charge alleging gold theft valued at nearly US$1 million.
His acquittal marked the end of a case which sucked in a Plumtree magistrate, a prosecutor, a senior police officer and five others.
The allegations arose from Rubaya’s representation of Jefat Chaganda, who had faced gold smuggling charges before Plumtree regional magistrate Timeon Makunde.
Chaganda was acquitted and the court ordered the return of the confiscated gold.
The State, however, escalated its approach, levelling theft and obstruction of justice charges against Rubaya and others involved in the proceedings.
His legal team swiftly denounced this move as procedurally irregular.
Rubaya’s legal team, led by Advocate Thabani Mpofu and supported by Mr Oliver Marwa and Mr Tymon Tabana, mounted a defence asserting that the charges were an affront to the sanctity of client-lawyer privilege.
They argued that the State’s actions amounted to an attack on the legal profession itself. After the High Court dismissed an application for exception, the defence escalated the matter to the Supreme Court.
Before the Supreme Court in Bulawayo, Adv Mpofu pressed the argument that the prosecution violated the principle of attorney-client privilege, a cornerstone of justice enshrined in Section 69 of the Constitution.
He added that this principle underpinned the right to a fair trial and accused the State of weaponising criminal proceedings to undermine lawful legal representation.
The State, represented by Ms Nonhlanhla Ndlovu, conceded under the force of these arguments.
The Supreme Court, constituted by Justices George Chiweshe, Chinembiri Bhunu, and Hlekani Mwayera, accepted the defence’s position and acquitted Rubaya with the agreement of both the prosecution and defence.
Magistrate Timeon Makunde was also exonerated.
The defence highlighted the High Court’s acknowledgment of defects in the charges against Rubaya, criticising its decision to let the matter proceed regardless.
Adv Mpofu argued that subjecting an accused person to trial on an invalid charge constitutes a grave irregularity.
He further pointed out that Rubaya’s role as Chaganda’s lawyer had no bearing on the magistrate’s decision to return the gold, which remained legally binding unless overturned.
Adv Mpofu dismantled the State’s theory, rejecting its backward reasoning that telephone calls or post-acquittal interactions with co-accused parties could retroactively substantiate charges of theft or obstruction of justice.
He argued that the State had failed to establish any essential facts constituting an offence at the time of the alleged crime, rendering the charges baseless.
The defence denounced the State’s approach as an impermissible attempt to review completed magistrate’s court proceedings through criminal prosecution.
Adv Mpofu underlined that the prosecution’s case lacked legal merit, asserting that no grounds existed to hold Rubaya accountable for defending his client in accordance with the law.
