Daniel Nemukuyu Senior Court Reporter
Former Air Zimbabwe bosses Peter Chikumba and Grace Pfumbidzayi will now effectively serve seven-year prison terms imposed on them for swindling the airline of $10 million after the High Court yesterday dismissed their appeals.
Chikumba, who was the airline’s chief executive, and former company secretary Pfumbidzai, were found guilty of criminal abuse of office, but they were freed on bail pending appeal.
High Court judge Justice Edith Mushore yesterday dismissed the appeals by the pair, saying they were fatally defective. The lawyers unsuccessfully applied for permission to amend the notice of appeal, resulting in the dismissal of the appeals. Justice Mushore said it was not possible to amend a fatally defective appeal.
“The legal position is that if the original notices of appeal are defective, then there is no appeal before the court,” she said.
“If there is no appeal before the court, then the matter ends there.
“It is not possible to amend or seek condonation of a fatally defective notice of appeal . . .
Justice Mushore said the heads of argument filed by the two did not comply with rule 238 (1) of the High Court Rules.
“The heads of argument filed by both appellants do not comply with the clear and strict provisions laid out in Rule 238 (1) of the High Court Rules 1971 both in form and content,” she said.
“They are voluminous and not in a good way.
“They are rambling narratives which give a factual point of view the way that the appellants would have wanted the court a quo to analyse the facts. No points of law are made, neither do they cite any authorities.
“Accordingly, in terms of Rule 238(2) of the High Court Rules 1971, the appellants are deemed to be barred. First and second appellants’ appeals are dismissed with costs.”
Pfumbidzai’s lawyer Advocate Thabani Mpofu criticised the decision of the court, saying he had instructions to appeal. He said the parties never argued the merits of the appeals, but the judge dismissed them.
“The matter will definitely be taken up,” said Adv Mpofu.
“Although the court did not hear argument on the substance of the matter, it has proceeded to not only dismiss the appeal, but has made an adverse costs order in a criminal appeal.
“Further, it has found that appellants are barred in their own appeal and has made that finding on the strength of the civil rules. An appeal whose grounds are invalid cannot be dismissed. We will attend to the correction of that mistake.”
Pfumbidzai and Chikumba appealed against both conviction and sentence, arguing that they were wrongly convicted and that the sentence was excessive. In the notice of appeal, their lawyers submitted that the magistrate misdirected herself by failing to assess all the evidence adduced in the trial.
The magistrate, the lawyers argued, erred by concluding that the auditor, Bhudhama Chikamhi, was a credible witness when he stood to benefit financially by testifying against the duo.
Charges against Pfumbidzayi and Chikumba arose after an anomaly was discovered by former Air Zimbabwe board chairman Mr Ozias Bvute pertaining to amounts paid between April 2009 and April 2013 to a company called Navistar Insurance Brokers (Private) Limited in respect of aviation insurance premiums.
Pfumbidzayi and Chikumba also inflated aviation insurance premiums payments made to Colemont Reinsurance Brokers (Private) Limited and Reinsurance Brokers (Private) Limited, both United Kingdom-based companies.
The firm released €15 452,93 to Navistar, €10 607 859,22 to the two British companies, while they pocketed €5 895 695,49.