FOSMM WHATSAPP THREAD ON 31 OCTOBER 2016 – Criminal Procedures and Evidence Act.

1. [7:09 AM, 10/31/2016] Tinashe Mpasiri: So exchange controls came into effect when Go no was appointed RBZ governor?
2. [7:11 AM, 10/31/2016] Shingai Ndoro: Exchange controls have always been there before Gono.
3. [7:11 AM, 10/31/2016] Tinashe Mpasiri: Ok
4. [7:11 AM, 10/31/2016] Tinashe Mpasiri: Thank you
5. [10:21 AM, 10/31/2016] Stanley: Morning everyone please me understand this affidavit,
6. [10:21 AM, 10/31/2016] Stanley: I see in a sworn statement Mabunda is praying to have a Warren of arrest issued
7. [10:26 AM, 10/31/2016] Stanley: *warrent
8. [10:29 AM, 10/31/2016] Tinashe Mpasiri: I am actually perplexed by the absurdity of allegation. Earlier I was on radio were I was bringing the FOSMM conversations to the public square. One aspect I raised was, when one is into business and manufactures products for export, is it any concern of government Where I decide to bank my money?
9. [10:31 AM, 10/31/2016] Tinomudaishe Chinyoka: There is such a thing as overegging an omelette. An affidavit of this nature is a standard document in applying for a warrant of arrest. It is not expected that it be 100% unimpeachable. All that is needed is for it to raise a prima facie case that there are enough reasons for a warrant of arrest to be issued. It’s even irrelevant that it refers to a generic name ‘Turnhall Zimbabwe’.
10. [10:31 AM, 10/31/2016] Stanley: We need to be educated on this
11. [10:32 AM, 10/31/2016] MD Mawere: Can you educate us about the role of affidavits in processing crimes?
12. [10:32 AM, 10/31/2016] MD Mawere: Agreed.
13. [10:34 AM, 10/31/2016] Primrose Jani: True let’s know more about that
14. [10:35 AM, 10/31/2016] Mcijo Ohlabayo: What is remittance ??
15. [10:40 AM, 10/31/2016] +263 77 587 5828: I would like to know more on this
16. [10:52 AM, 10/31/2016] Norman Mukandagumbo: an affidavit is an affidavit…………..governed by the relevent statute. its an offence to lie on an affidavit…there is no excuse. thus the law in Zim
17. [10:55 AM, 10/31/2016] MD Mawere: This is the case but listen to the new twisted argument that no obligations are placed on a deponent in criminal proceedings. What is being aggressively suggested that the decision to issue an order to arrest someone has no constitutional bearing. This is being suggested in this group. If the characters in this drama were different do you think the comments and seriousness attached to the veracity of the allegations would be any different.
18. [11:00 AM, 10/31/2016] Tinashe Mpasiri: If legal experts on this platform are contributing to such kind of thinking and letting it stand, then I am doomed considering that these are the individuals I look up to and hope to be passing and sharing knowledge with me. Who then are the Masters on legal matters for the Master Class?
19. [11:02 AM, 10/31/2016] MD Mawere: There are some who see no evil and hear no evil in Mabunda’s enterprise yet are often too quick to lump evil on the sole person of Mugabe
20. [11:03 AM, 10/31/2016] Norman Mukandagumbo: 180 Deliberately supplying false information to public authority
(1) Any person who, for the purpose of obtaining any advantage, whether for himself or herself or for some other person, supplies any information verbally or in writing to a public authority
(a) knowing that the information is false; or
(b) realising that there is a real risk or possibility that it may be false; shall be guilty of deliberately supplying false information to a public authority and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.
(2) Where a person is accused of deliberately supplying false information to a public authority in connection with an enactment which makes such conduct a crime, such person shall be charged under that enactment and not under subsection (1).
21. [11:06 AM, 10/31/2016] MD Mawere: Do you agree that we have to subject the averments specifically to this? CclMessageAdd to a group
22. [11:11 AM, 10/31/2016] Stanley: Help me welcome Cecil to the group
23. [11:12 AM, 10/31/2016] Mahlangu: Thank you sir
24. [11:20 AM, 10/31/2016] Stanley: Join us on the boiling point www the
25. [11:20 AM, 10/31/2016] Stanley: As we look at the affidavit which we shared this mornig
26. [11:23 AM, 10/31/2016] Tinashe Mpasiri: Legal experts
27. [11:24 AM, 10/31/2016] Stanley: What is the process of registering a
28. [11:25 AM, 10/31/2016] Stanley: *A case
29. [11:25 AM, 10/31/2016] Stanley: Who registers a case criminal-procedure
30. [11:25 AM, 10/31/2016] Tinashe Mpasiri: We are deliberating on the affidavit by Mabunda
31. [11:25 AM, 10/31/2016] Tinashe Mpasiri: A chief superintendent in the Zimbabwe Republic Police
32. [11:26 AM, 10/31/2016] Mahlangu: Reporting a case depends on whether it is criminal or civil
33. [11:26 AM, 10/31/2016] Tinashe Mpasiri: In a criminal matter
34. [11:26 AM, 10/31/2016] Tinashe Mpasiri: How is it lodged
35. [11:29 AM, 10/31/2016] Nikiwe Denga: A complainant (wronged person/party) os thenonenwhongoes to register a case
36. [11:48 AM, 10/31/2016] Stanley: So in a criminal matter if they is no witness they is no case.
37. [11:51 AM, 10/31/2016] Stanley: What is the role of a police officer in a democratic state
38. [11:53 AM, 10/31/2016] Mahlangu: A case is opened because one acts contrary to the law. There’s case with or without witnesses. Witness are there to cement evidence against the accused
39. [11:53 AM, 10/31/2016] Mahlangu: Don’t beat up your girlfriend when it’s just the two of you hoping that you’ll go scot free
40. [11:54 AM, 10/31/2016] Thinga: The police can be witnesses in matters they,re directly involved or can even be complainants but in a matter which involves things or information that they are not privy to e.g company fraud by an employee the complaint has to be raised by the co
41. [11:55 AM, 10/31/2016] Stanley: Have you looked at the affidavit
42. [11:55 AM, 10/31/2016] Thinga: Yes
43. [11:56 AM, 10/31/2016] Thinga: I,ve looked at it wholesome
44. [11:57 AM, 10/31/2016] Stanley: Did Mabunda have the facts he was disposition g to
45. [11:57 AM, 10/31/2016] Stanley: *Disposing
46. [11:58 AM, 10/31/2016] Thinga: Before even going for the text,Mabunda did not have the right to raise any fact to information he was not privy to
47. [11:59 AM, 10/31/2016] Mahlangu: Mabunda is acting on a warrant of arrest
48. [11:59 AM, 10/31/2016] Stanley: He lied under oath
49. [12:00 PM, 10/31/2016] Thinga: Mmcz should be the one which culd do so since it handles all exports of minerals,but then there is no Mention that the minerals were smuggled
50. [12:00 PM, 10/31/2016] Stanley: No warrant at the time
51. [12:00 PM, 10/31/2016] Stanley: Hence he prayed that the warrent be issued
52. [12:01 PM, 10/31/2016] Stanley: Should the police complain or TZ
53. [12:01 PM, 10/31/2016] Thinga: Lied,misrepresented himself
54. [12:01 PM, 10/31/2016] Mahlangu: Oh yes! He is appealing for a warrant of arrest
55. [12:02 PM, 10/31/2016] Stanley: What are we saying about his affidavit
56. [12:02 PM, 10/31/2016] Mahlangu: Is this case not S v Mawere?
57. [12:03 PM, 10/31/2016] Stanley: So is Zimbabwe a constitutional state
58. [12:03 PM, 10/31/2016] Mahlangu: State v Mawere?
59. [12:04 PM, 10/31/2016] Thinga: Its not state vs mawere,but mabunda made the oath in his personal capacity
60. [12:04 PM, 10/31/2016] Tinashe Mpasiri: Turnall does not export minerals, but manufactures products using asbestos fibre.
61. [12:04 PM, 10/31/2016] Thinga: I Did not say that
62. [12:04 PM, 10/31/2016] Stanley: So Mabunda abused his powers
63. [12:05 PM, 10/31/2016] Mahlangu: Let’s not be emotional. We are not dealing with the merits of the case. Let’s look at the procedure
64. [12:06 PM, 10/31/2016] Thinga: In any case the citation is misplaced
65. [12:06 PM, 10/31/2016] Thinga: Turnal was erroneusly mentioned
66. [12:07 PM, 10/31/2016] Thinga: Abuse of power,yes
67. [12:09 PM, 10/31/2016] Stanley: So looking at a public office bearer abusing his office powers? What can we say about zimbabwe being a constitutional democracy
68. [12:13 PM, 10/31/2016] Mahlangu: Mubunda is acting on behalf of the state. He’s a CID investigating Mr Mawere on behalf of the state regardless of whether the allegations are thumped up
69. [12:13 PM, 10/31/2016] Mahlangu: or not
70. [12:15 PM, 10/31/2016] Tinashe Mpasiri: Are you tuned in
71. [12:17 PM, 10/31/2016] Mahlangu: Unfortunately no
72. [12:22 PM, 10/31/2016] MD Mawere: What happens if the victim refuses to open a case?
73. [12:26 PM, 10/31/2016] Mahlangu: A lot of cases go u reported especially rape , incest and domestic violence. There’s nothing that can be done about unreported cases
74. [12:27 PM, 10/31/2016] Mahlangu: A lot of cases go un reported especially rape , incest and domestic violence. There’s nothing that can be done about unreported cases
75. [12:28 PM, 10/31/2016] Mahlangu: For some cases it takes whistle blowers for such to reach the police
76. [12:30 PM, 10/31/2016] MD Mawere: Can the police imagine facts and depose to affidavits in a criminal matter? What is the role of the police officer in respect to a criminal matter in a constitutional democracy?
77. [12:32 PM, 10/31/2016] Mahlangu: Police officers receive reports. Then arrest and investigate
78. [12:33 PM, 10/31/2016] Mahlangu: No one should be detained for more than 48 hours without going to court.
79. [12:35 PM, 10/31/2016] Mahlangu: SA is more democratic in that if there’s no space in the cells you are released instead of being locked in a police officer’s garage
80. [12:36 PM, 10/31/2016] Primrose Jani: Don’t you investigate then arrest if guilty
81. [12:37 PM, 10/31/2016] MD Mawere: What should happen if no visible complainant?
82. [12:39 PM, 10/31/2016] TM: Should ideally be investigate and arrest.
83. [12:41 PM, 10/31/2016] MD Mawere: Is it an ideal or prescript of law
84. [12:42 PM, 10/31/2016] +263 77 728 7847: Thank you guys for your warm welcome. As the current local MP for Zvishavane – Ngezi in which SMM falls under I do take personal interest in the rising up and good running of SMM. There is only one way to sort out things, that is by telling the truth. For the truth shall set us free. As your servant I genuinely belief that I can truely and well represent you if all of you keep me well informed. Looking forward to a meaningful and fruitful association.
85. [12:44 PM, 10/31/2016] TM: It’s an ideal. The law as is gives a leeway to arrest and then investigate.
Thus giving an IO the power to apply for a warrant without necessarily sound investigation.
I stand guided here.
86. [12:45 PM, 10/31/2016] Tinashe Mpasiri: And to the legal experts on this platform, what’s your take on the above?
87. [12:49 PM, 10/31/2016] MD Mawere: 👋🏾👋🏾👋🏾👋🏾
88. [12:50 PM, 10/31/2016] Stanley: Hon Holder welcome, my name is Wildfire am going to be on radio at 2pm on
89. [12:52 PM, 10/31/2016] Primrose Jani: Maybe they highly consider anonymous tips as accurate
90. [12:52 PM, 10/31/2016] Stanley: A question has risen on the roll of police officers in a constitutional democracy. And we are using the affidavit that gave life to the series of events leading to the colapse of SMM, as a MP in representing the people most affected where you aware or aware of the genesis of the SMM saga.
91. [12:54 PM, 10/31/2016] MD Mawere: Why do you see maybe when a police officer in a democracy is limited in terms of conduct by the law? Can a crime exist if no injury is occasioned on anyone?
92. [12:54 PM, 10/31/2016] Norman Mukandagumbo: the law does not give room for police officers to arrest then investigate…….but the opposite is true
93. [12:55 PM, 10/31/2016] MD Mawere: It helps to have lawyers who speak to the law.
94. [12:57 PM, 10/31/2016] Tinashe Mpasiri: Thank you.
95. [12:58 PM, 10/31/2016] Norman Mukandagumbo: otherwise if a police officer arrest and then investigate, what then if it happens after completed investigations that the accused has no case to answer. that ooficer risk to be sued for malicious arrest
96. [12:58 PM, 10/31/2016] TM: It is the practical effect of a warrant being issued on reasonable suspicion that a Crime has been committed
97. [1:07 PM, 10/31/2016] Tawanda Madamombe: I Somehow do not subsribe to the arrest then investigate notion here,,if one is working with the timeline then you,ll all agree that its incriminate then blacklist
98. [1:09 PM, 10/31/2016] Mahlangu: The duties of the police are to investigate the commission or suspected commission of crimes. When you are arrested you find yourself interrogated , searched and all the hated police ‘harassment’
99. [1:10 PM, 10/31/2016] Mahlangu: It’s only the court that finds you guilty cpl
100. [1:10 PM, 10/31/2016] Mahlangu: You are innocent until proven guilty
101. [1:13 PM, 10/31/2016] Mahlangu: 48 hours is too little time for police officer to cover full investigations. That’s why people are given bail to ensure that further investigations are carried. Some of course who might be labelled ‘flight risk’ are denied bail
102. [1:15 PM, 10/31/2016] MD Mawere: I am trying to understand the import of what you are saying. What is the role of the police?
103. [1:15 PM, 10/31/2016] Mahlangu: Unfortunately that’s the scenario in most cases. After all the harassment , the court acquits you.. .
104. [1:15 PM, 10/31/2016] Mahlangu: The duties of the police are to investigate the commission or suspected commission of crimes. When you are arrested you find yourself interrogated , searched and all the hated police ‘harassment’
105. [1:16 PM, 10/31/2016] Tawanda Madamombe: So you mean to say the police are allowed to deny someone freedom based on presumption
106. [1:17 PM, 10/31/2016] MD Mawere: What would the constitution say to this?
107. [1:19 PM, 10/31/2016] Tawanda Madamombe: Its in violation of the right to freedom
108. [1:20 PM, 10/31/2016] Norman Mukandagumbo: KHANYILE v MINISTER OF POLICE held that,
109. The object of an arrest is always to ensure that the arrested person will be brought before a court of law. If that is not the object, then the arrest is unlawful. The Standing Order also states that the police may not arrest a person in order to punish, scare or harass them. I have failed to find any justification for the arrest and detention of the plaintiff by the police in this case. I am even inclined to come to the conclusion that they arrested him because he was “cheeky” by refusing to co-operate when they demanded that he should “get off” his taxi after the collision. The intention of the police was not to bring plaintiff before a court. Their intention was to punish him, contrary to the Standing Orders…. Any arrest of a suspect not preceded by an intention to bring the arrested person to justice, is unlawful. [Minister of Safety and Security v Sekhoto . In Louw and Another v Minister of Safety and Security and Others at 185b-e, Bertelsmann J held that “An arrest is a drastic interference with the rights of the individual to freedom of movement and to dignity. In the recent past, several statements by our Courts and academic commentators have underlined that an arrest should only be the last resort as a means of producing an accused person or a suspect in court. In Minister of Correctional Services v Tobani , the Court held that ‘So fundamental is the right to personal liberty, the lawfulness or otherwise of a person’s detention must be objectively justifiable, regardless … even of whether or not he was aware of the wrongful nature of the detention.’
110. [1:27 PM, 10/31/2016] MD Mawere: Imagine Mabunda’s state of mind before, during and after deposing to the affidavit. Who informed his knowledge about the facts that could only originate outside the mind of an ordinary officer working in a constitutional democracy
111. [1:27 PM, 10/31/2016] MD Mawere: This is helpful
112. [1:35 PM, 10/31/2016] TM: Helpful indeed.
113. But you do understand what the practical effect of the test to issue a warrant is?
114. [1:36 PM, 10/31/2016] MD Mawere: What is your take? What informs the question?
115. [1:37 PM, 10/31/2016] TM: RE:
116. [1:39 PM, 10/31/2016] MD Mawere: Does this speak to the limits imposed by the constitution
117. [1:45 PM, 10/31/2016] TM: My observations are that the Courts have condoned the practice of securing a suspect through an arrest. They’re arraigned before the courts and ‘remanded’ to be granted bail and then to always restrict one’s movements. This assists the police to carry investigations if say another is based in South Africa.
It certainly undermines the notions of justice. But it seems to be the position. It is also in the interests of administration of justice to bring cases to Finality.
118. [1:49 PM, 10/31/2016] Majamanda: I agree counsel
119. [1:53 PM, 10/31/2016] Thinga: What do you mean securing a suspect,,is the suspect in flight mode??
120. [1:55 PM, 10/31/2016] Thinga: And what constitutes a suspect
121. [1:55 PM, 10/31/2016] MD Mawere: Are you sure it is condoning or there should be a basis upon which the action to arrest ought to be based.
122. [1:57 PM, 10/31/2016] Thinga: The us has used this method before in guantamo bay,,but the very reason why they settled for such a place jusgifies what constitutes a suspect
123. [1:58 PM, 10/31/2016] TM: The Courts have been endorsing this each day
124. Bail is thrown as the check.
125. [2:03 PM, 10/31/2016] Norman Mukandagumbo: currently, on rare occassion does the court deny someone bail………our new constitution z tight.
126. [2:04 PM, 10/31/2016] TM: I agree.
127. [2:04 PM, 10/31/2016] MD Mawere: We want to look at the exceptions referred to. Which are these rare occasions?
128. [2:11 PM, 10/31/2016] Tinashe Mpasiri: There’s a question that has been raised on radio, the question is, if one deposes an affidavit, and knowingly gives info that is false, what is that called? Please assist
129. [2:12 PM, 10/31/2016] Norman Mukandagumbo: bail pending appeal………..where the ground of appeal are just frivolous s …..and the apeal having made without a genuine cause bt to circumevert justice
130. [2:13 PM, 10/31/2016] Norman Mukandagumbo: is that not pergury?
131. [2:13 PM, 10/31/2016] Tinashe Mpasiri: What about defeating the ends of Justice
132. [2:17 PM, 10/31/2016] Tinashe Mpasiri: Thank you.
133. [2:20 PM, 10/31/2016] Mahlangu: Why are we saying the contents of the affidavit are lies?
134. [2:21 PM, 10/31/2016] Stanley: A good question
135. [2:21 PM, 10/31/2016] Tinashe Mpasiri: Dr Vusi Sibanda has joined the conversation on via Skype
136. [2:24 PM, 10/31/2016] Tinashe Mpasiri: He has also answered my question and stated that when a public officer deposes an affidavit and gives false info, it is perjury. And in doing so, the public officer is defeating the ends of Justice.
137. [2:26 PM, 10/31/2016] Primrose Jani: Great fact , thank you I didn’t know
138. [2:29 PM, 10/31/2016] Mahlangu: True. Laying false criminal charge against someone is defeating or obstructing the course of justice
139. [2:31 PM, 10/31/2016] Mahlangu: Other examples of obstruction of justice are persuading a witness not to give evidence in a trial, misleading police in order to prevent them from catching a criminal and of course what Chinamasa did when he was Minister of Justice….
140. [2:32 PM, 10/31/2016] Tinashe Mpasiri: We are looking at the Criminal Procedures and Evidence Act
141. [2:32 PM, 10/31/2016] Tinashe Mpasiri: Section 183
142. [2:32 PM, 10/31/2016] Tapuwa Chitambo: Good afternoon friends. I have come to the realization that there are a lot of crimes committed by the state in this SMM saga. However I also have to mention that we have continued analysing them with no headway which one to push forward. Correct me if I am wrong but aren’t we suffering from paralysis of analysis???
143. [2:33 PM, 10/31/2016] TM: Tyt choice there
144. [2:35 PM, 10/31/2016] Stanley: You missing in action
145. [2:35 PM, 10/31/2016] Tapuwa Chitambo: So many criminal and prosecutable issues we must begin somewhere?
146. [2:36 PM, 10/31/2016] Stanley: Right now we talking about Mabunda
147. [2:36 PM, 10/31/2016] Stanley: Do you know who that is
148. [2:36 PM, 10/31/2016] Tapuwa Chitambo: True cde had a Tyt schedule cde but I am back.
149. [2:37 PM, 10/31/2016] Stanley: Welcome back
150. [2:37 PM, 10/31/2016] Stanley: Let’s talk genesid
151. [2:37 PM, 10/31/2016] Tapuwa Chitambo: That is great so we can follow this affidavit through I hope.
152. [2:37 PM, 10/31/2016] Stanley: Genesis the begining of the SMM fall
153. [2:37 PM, 10/31/2016] Stanley: Have you gone thru the affidavit
154. [2:39 PM, 10/31/2016] Tapuwa Chitambo: Yes I have cde and also the thread that followed. Looks to me we Mabunda has a case to answer. How then do we proceed?
155. [2:40 PM, 10/31/2016] Tinomudaishe Chinyoka: At the time, all that was needed for a warrant of arrest was a proms facile case that a crime had been committed. The affidavit does that
156. [2:40 PM, 10/31/2016] Stanley: What is the test that Mabunda has to meet
157. [2:40 PM, 10/31/2016] Stanley: Or what do you think is the test that Mabunda has to meet
158. [2:41 PM, 10/31/2016] Stanley: What crime was commited
159. [2:41 PM, 10/31/2016] Stanley: How does the affidavit meet the TEST
160. [2:43 PM, 10/31/2016] Tapuwa Chitambo: 👆🏿👆🏿
161. [2:43 PM, 10/31/2016] Tinomudaishe Chinyoka: That’s the wrong question. A prima facie case that a crime has been committed does not necessarily mean that a crime WAS IN FACT committed
162. [2:44 PM, 10/31/2016] Tinomudaishe Chinyoka: It does so by suggesting that there is a likelihood that a crime may have been committed and that it is necessary to investigate and that the person so named might assist the police once they are arrested
163. [2:44 PM, 10/31/2016] Tinashe Mpasiri: What is the right question then sir?
164. [2:44 PM, 10/31/2016] Shingai Ndoro: May someone upload the latest Criminal Procedures and Evidence Act
165. [2:46 PM, 10/31/2016] Tinomudaishe Chinyoka: The affidavit was not deposed on the basis of the “latest” act
166. [2:47 PM, 10/31/2016] Stanley: My question relates to the facts as deposed to and am struggling to find who the accused was and what he did wrong
167. [2:47 PM, 10/31/2016] Tinomudaishe Chinyoka: The right question is “what crime is is that the police believed had been committed?” Such a question accommodates the view that in fact no crime had been committed and therefore preserves the principle of innocent until proven guilty.
168. [2:47 PM, 10/31/2016] Stanley: *what he was alleged to have done wrong
169. [2:48 PM, 10/31/2016] Tinomudaishe Chinyoka: The affidavit for a warrant of arrest cannot have an ‘accused’ because that (the accusation) only happens after the charges are laid on the person. The most that the affidavit does is show a person of interest, and that is clear from the document.
170. [2:49 PM, 10/31/2016] Tinashe Mpasiri: On the basis of the affidavit, what crime Is alleged.
171. [2:49 PM, 10/31/2016] Shingai Ndoro: We can have both uploaded like we did with the constitutions.
172. [2:49 PM, 10/31/2016] Stanley: In this case who is the person of interest
173. [2:49 PM, 10/31/2016] Stanley: And by whom and when?
174. [2:51 PM, 10/31/2016] Tinashe Mpasiri: To have been committed and to where it could have committed
175. [2:52 PM, 10/31/2016] Tinomudaishe Chinyoka: Res ipsa loquitor: “I am investigating cases of foreign currency externalisation”
176. [2:52 PM, 10/31/2016] Tinomudaishe Chinyoka: Res ipsa loquitor: Mutumwa Mawere
177. [2:53 PM, 10/31/2016] Mahlangu: I’m still puzzled by our conclusion that the CID officer lied. He neither exposed his evidence nor the statements of his witnesses. Do we have the docket?
178. [2:53 PM, 10/31/2016] Tinomudaishe Chinyoka: Res ipsa loquitor: by the deponent and on the date of deposing to the affidavit
179. [2:53 PM, 10/31/2016] Stanley: Look at paragraph 5 of the affidavit
180. [2:54 PM, 10/31/2016] Tinomudaishe Chinyoka: There are no lies in the affidavit. The officer clearly states that he was investigating allegations and went on to state what those allegations were
181. [2:54 PM, 10/31/2016] Tinashe Mpasiri: Of you look at paragraph 2,3&4 there is no mention of Mawere
182. [2:54 PM, 10/31/2016] Stanley: Refer to paragraph 2- 4 of the affidavit
183. [2:55 PM, 10/31/2016] Tinomudaishe Chinyoka: The use of the word ‘accused’ in the affidavit must not be read in the technical sense but merely to mean the person of interest
184. [2:55 PM, 10/31/2016] Tinashe Mpasiri: What was the relationship between Mawere and the entities referred to?
185. [2:55 PM, 10/31/2016] Stanley: Are you saying the person of interest is the same thing as the accused
186. [2:56 PM, 10/31/2016] Tinomudaishe Chinyoka: There is no reason to mention him in every paragraph the affidavit would have been read by anyone it was meant to as asking for a warrant to arrest Mawere
187. [2:56 PM, 10/31/2016] Mahlangu: This is how I see it too Tinashe!
188. [2:56 PM, 10/31/2016] Tinomudaishe Chinyoka: Irrelevant at the time of the investigations, since that is what said investigations were going to establish.
189. [2:59 PM, 10/31/2016] Tinomudaishe Chinyoka: No, l am saying in this affidavit that distinction was not made, likely because it was largely otiose. The magistrate would have known that technically speaking Mawere was not yet an accused but that the police for clarity and operational reasons use that term from the beginning. The reason is simple, if initial documents said “person of interest” and later ones said “accused” some might think it’s two different people. It’s a non sequitur
190. [3:00 PM, 10/31/2016] Stanley: In what way is it irreverent if the Co allegation made relate to companies and not a natural person? Are you suggesting that it is ok to relate facts relating to a company to an individual who is neither a director nor shareholder. 2004 FEB. CRIMINAL PROCEDURE AND EVIDENCE ACT.pdf140 pagesPDF1 MB
191. [3:03 PM, 10/31/2016] Stanley: Thanks 2016 June Criminal Procedure & Evidence Act as amended.pdf152 pagesPDF2 MB
192. [3:04 PM, 10/31/2016] Tinashe Mpasiri: 👍
193. [3:07 PM, 10/31/2016] MD Mawere: Now that we have the Act perhaps you can indicate the law and why it is your view that the accused is not the appropriate term. Remember that the law gives a shelf life of 48 hours to the arrest before which the state must give its case in a bail hearing. What are you saying is the law? Now a person of interest can be arrested without having regard to the facts linking him to a crime.
194. [3:17 PM, 10/31/2016] Mahlangu: I’ve not been answered as to why we say the CID officer lied?
195. [3:18 PM, 10/31/2016] Mahlangu: Are we exposed to his evidence or statements from the witnesses? Do we have the docket?
196. [3:20 PM, 10/31/2016] MD Mawere: You will note that the affidavit refers to allegations of externalization of foreign currency. One has to understand the construction of the allegation in relation to the facts of the matter.
197. [3:21 PM, 10/31/2016] MD Mawere: From the facts as set out in the affidavit, what is it that is being alleged to have been done by who and when?
198. [3:24 PM, 10/31/2016] Mahlangu: Why are we treating this affidavit as if it’s the docket? The docket has all the information. This affidavit is just an appeal for warrant of arrest and gives a brief background of the case
199. [3:24 PM, 10/31/2016] MD Mawere: Please let resolve the question posed by Tino. According to Tino if I understand him correctly there is a misnormer in the affidavit. The term accused should not have been used and on the contrary the correct term should be a person of interest.
The question that remains is when and how does a person of interest become an accused.
Or whether a person of interest is automatically an accused in the legalies.
Perhaps we can settle this.
200. [3:25 PM, 10/31/2016] MD Mawere: Indeed an affidavit must flow from facts. What are these facts – see para 2 to 4.
201. [3:27 PM, 10/31/2016] MD Mawere: What information would be different in the docket? Is the accused connected with the facts? Does the accused fall within the ambit of the law?
202. [3:28 PM, 10/31/2016] Nikiwe Denga: The question is a bit complex but i have noticed a trend in zimbabwe…
203. Most cases with people of interest tend to be absorbed by elite interested parties who either have something to lose or gain. I dont know if my two cents was clear enough
204. [3:30 PM, 10/31/2016] MD Mawere: Where is the complexity manifest? Please let facts of the matter guide?
205. [3:59 PM, 10/31/2016] Tinomudaishe Chinyoka: It’s irrelevant because at that stage of the inquiry the person of interest was Mawere. You are assuming that the investigation should have been complete before it was. Once arrested, the person of interest would have provided those distinctions foreclosure-investigation_jpg_475x310_q85
206. [4:00 PM, 10/31/2016] Tinomudaishe Chinyoka: You are missing my point on the use of the word ‘accused’
207. [4:01 PM, 10/31/2016] MD Mawere: Perhaps you can explain.
208. [4:01 PM, 10/31/2016] Tinomudaishe Chinyoka: A person of interest becomes the accused when charges are formally laid
209. [4:03 PM, 10/31/2016] MD Mawere: What triggers what? When someone is arrested, what is said of the act to the arrested party? Do you have a right to remain silent? Does the law provides for the limitations of rights for a person simply designated as of interest?
210. [4:04 PM, 10/31/2016] Stanley: You keep on saying the person of interest was Mawere but the facts suggests otherwise
211. [4:09 PM, 10/31/2016] Mahlangu: This affidavit is an application for warrant of arrest please! It’s not the alpha and omega of the whole case. When the accused is arrested that is when he will plead to the charges on the docket.
212. [4:13 PM, 10/31/2016] Stanley: Am not assuming anything, I want to understand what kind of country would that be, as a person of interest, I can be inconvenienced willy nilly and my right to freedom of movement and to dignity can be arbitrarily interfered with. So all that is required according to you is that in a constitutional democracy the police or anyone in uniform can wake up and target any person and inconvenience them.
213. [4:13 PM, 10/31/2016] MD Mawere: Is it the accused of person of interest that can be arrested?
214. [4:17 PM, 10/31/2016] Gandanga: Tino maybe u can shed more light on this one?
215. [4:19 PM, 10/31/2016] MD Mawere: Are you suggesting that the constitutional test for arresting is so low that no threshold for invoking it is necessary?

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