ONE of Mashwede Holdings’ former employees charged with stealing US$6 900 from the company coffers has filed an application for referral of his case to the Constitutional Court (ConCourt).
Nevanji Enerst Madanhire, who was convicted alongside Edson Mashamhanda, wants the ConCourt to determine whether his right to fair hearing and right to administrative justice were not violated.Madanhire said this was because he was subjected to criminal proceedings without arrest, recorded, warned and cautioned statements.
Through his lawyer Gift Nyandoro, Madanhire said the application was for referral of criminal proceedings under criminal record book number 4980/20 to the ConCourt in terms of section 175(4) of the Constitution.
The court heard that on July 4 this year, the clerk of court confirmed that Madanhire had no criminal record book in his name after he had been convicted.The criminal record book number 4980/20 which was used was for Mashamhanda, who was arraigned before the court on May 8, 2020.
Nyandoro said Madanhire had no identifiable record of criminal proceedings before the court.
“The State immediately instructed the clerk of court to open a purported criminal record book number for the applicant well after his conviction in the afternoon of July 4, 2022. The newly-purported criminal record book number for applicant is 7227/22. The late opening of a criminal record book number for applicant by the clerk of court at the behest of the State is patently unlawful under the circumstances,” Nyandoro submitted.
“That alone bears testimony to the State’s admission by implication that the accused cannot possibly be subjected to criminal proceedings by a competent court in the absence of a criminal record book number being opened in the accused person’s name.”He said an accused’s identity for purposes of criminal proceedings can only be generated from a criminal record book number.
“This has not happened in the present matter. Under the circumstances, the applicant has no identity before this court for purposes of the present proceedings. Stubborn the allegation may be, it just remains as such,” his lawyer submitted.
“The opening of the new criminal record book number for applicant well after his conviction and marrying of the same to criminal record book number 4980/20 without the sanctioning of this court undermines the integrity of our criminal justice system.”
Nyandoro also wants the ConCourt to adjudicate on the validity of the constitutional position on whether applicants can be deemed to have been properly charged by the State for theft of trust property involving US$6 900 when there was no arrest or recorded statement.
In response, the State said the criminal record number had no effect in the conviction of the matter.
Magistrate Evelyn Mashavakure will deliver her ruling on the application on Monday.