The Supreme Court has acquitted Harare lawyer, Admire Rubaya, who was accused of gold theft, ruling that the lower courts misdirected when they trashed his application excepting to the charges.
Rubaya was accused of theft after he successfully represented one Jefat Chaganda before a Plumtree magistrate Timeon Makunde.
Chaganda was accused of gold smuggling and after winning the case, the State was ordered to return his gold which they had forfeited.
Unhappy with the victory, the State went on to arrest Rubaya, the magistrate, the prosecutor and the investigating officer in the case.
The four were charged with theft, a charge which they challenged since the outline did not show that a crime was committed.
Through his lawyers, Rubaya complained about victimization, stating that it was wrong for the State to prosecute him for doing his job as a legal professional.
He accused the State of violating the attorney-client privilege.
Rubaya was represented by Advocate Thabani Mpofu who was taking instructions from Tymon Tabana and Oliver Marwa.
The lawyers said, "Legal professional privilege is an established principle of our law that goes to the root of a fair trial as entrenched by section 69 of the Constitution."
Rubaya was alternatively charged with obstruction of justice.
The lawyers mounted an application for exception, which the High Court dismissed before they took the decision up for review by the Supreme Court.
The arguments pushed the State into making concessions.
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As a result Supreme Court accepted Rubaya's arguments and cleared him of wrongdoing.
Before the Supreme Court, the lawyers pointed out that the High Court judge made concessions that the charge against Rubaya was defective but still allowed the matter to proceed which they described as a misdirection.
"There can be no doubt that the court a quo was not satisfied that a valid charge existed. It is that finding which appellant wanted it to make and to pronounce itself on its effect. By our law, an accused person cannot be expected to go through a trial where no valid charge exists. That is an irregularity," he argued.
Mpofu's argued that the acquittal of Chaganda by the magistrate had nothing to do with his client and whether the decision was correct or not could not be attributed to him.
He also argued that the decision by the magistrate is still standing, which made it valid and had they had an issue, it would have been overturned.
"In the instant case, what is revealed is that appellant (Rubaya) represented an accused person who was acquitted, and that the court acquitting the appellant's client also ordered the release of the gold.
"Whether or not it was competent for the Learned Magistrate to make such an order is irrelevant, as the conduct of the Magistrate is not imputable to the appellant and no basis has been alleged for taking that position," Mpofu argued.
A three-panel bench comprising Justices George Chiweshe, Chinembiri Bhunu and Hlekani Mwayera found favour with Rubaya's arguments and cleared him of wrongdoing. The judges also acquitted magistrate Makunde.
