BHUNU
J: The applicant is the Minister of Finance in the Ministry of Finance. On the
other hand the first to third respondents are members of the Zimbabwe Republic
Police engaged in criminal investigations concerning cell phone lines 0772 568
807, 0774 346 082 and 0778 437 880 which have to do with the applicant's calls.
The
first respondent is the investigating officer whereas the second
respondent is the Officer Commanding, Criminal Investigations (CID). The third
respondent is the Commissioner General responsible for all police operations in
Zimbabwe.
The
fourth respondent is a company in the business of mobile telephone
communication services and is responsible for operating the above three cell
phone numbers.
The
police are currently investigating allegations against the applicant to the
effect that he unlawfully authorized an employee in his Ministry one Petronella
Chishawa to go on various foreign trips on special per diem rates thereby
showing favour to the said Petronella Chishawa.
In
the course of investigations the first respondent first sought to obtain a
record of information pertaining to the above three numbers on 20 June 2011
from the fourth respondent without success.
Having
failed to obtain the required information upon request the police invoked the
provisions of s 54 (2) (a) and (b) of the Criminal Procedure and Evidence Act [Cap. 9:07]. That section permits police
to enter premises and obtain evidence upon reasonable suspicion that relevant
information may be obtained therein. The section provides as follows:
“54 Entering of
premises for purposes of obtaining evidence
(1). Where a police officer in the investigation of an offence or
alleged offence reasonably suspects that a person who may furnish information
with reference to any such offence is upon or in any premises, he may, without
warrant, enter the premises for the purpose of interrogating such person and
obtaining a statement from him:
Provided that a police officer shall not enter any
dwelling in terms of this section without the consent of the occupier thereof.
(2) Where a police officer of such class as the Minister may
designate considers on reasonable grounds that it is necessary for the purpose
of investigating or detecting an offence to examine any books, documents or
other records, he may, without warrant—
(a) enter any premises for the purpose of
examining such books, documents or other records; and
(b) require from any person thereupon or
therein the production then and there of such books, documents or other records
which are or have been upon or in the premises or in the custody or under the
control of any person by whom the premises are occupied or used; and may
examine and make extracts from and copies of all such books, documents and
other records:
Provided that a police officer shall not enter any
dwelling in terms of this subsection without the consent of the occupier
thereof.”
The above section quite clearly
authorizes the police to obtain without warrant the required information not
only upon reasonable suspicion that a crime has been committed but also for
purposes of detecting crime.
Out of an abundance of caution
the police in an exparte application also
obtained a search warrant in terms of s 49 as read with s 50 of the Act
authorizing them to enter the fourth respondent's premises and seize the
required information in the form of records pertaining to the call history of
the three cell phone lines in question.
The applicant has since
appealed to this Court for an order setting aside the search warrant. He has
now filed an urgent chamber application seeking to interdict the first, second
and third respondents from accessing any information concerning his calls and
the fourth respondent from providing the required information.
In determining the application
the Court is duty bound to determine the applicant's prospects of success on
appeal. The first hurdle which the applicant has to surmount is whether or not
the search warrant is appeallable.
It is trite that the
magistrate's court is a creature of statute. It has no inherent jurisdiction.
It thus can only do that which it is empowered to do by statute as it has no
power of its own other than that conferred upon it by statute. The right to
appeal against the Magistrates' Court decision in criminal proceedings is
conferred upon it under s 60 of the Magistrates Court Act [Cap 7:10] which provides that:
“60 Appeal
from magistrates courts in criminal cases
(1) Subject
to this section and any other enactment, any person who is convicted of any offence by a court may
appeal to the High Court against the conviction and additionally, or
alternatively, any sentence or order of the court following upon the
conviction?
(2)….
(3) A
person who is convicted of any offence by a court and who is discharged after
conviction in terms of any provision of the Criminal Procedure and Evidence Act
[Chapter 9:07] may appeal against
such conviction to the High Court.
(4) Any person who has been convicted by a court but
sentenced by a judge of the High Court in terms of Part IX of the Criminal
Procedure and Evidence Act [Chapter 9:07]
may appeal to the Supreme Court against such conviction or any sentence imposed
upon him or any order of court following upon such sentence as though he had
been both convicted and sentenced in the High Court.”
It
is self evident that the Magistrates Court Act makes no provision for an appeal
to any court against the issuance of a search warrant in terms of s 54 of the
Criminal Procedure and Evidence Act. I have also perused the Criminal Procedure
and Evidence Act and I am satisfied that it makes no provision for an appeal
against a search warrant issued by a magistrate in terms of the Act.
Section
60 of the High Court Act [Cap 7: 06]
limits the right of appeal in criminal cases from the Magistrates Court to
those aggrieved by conviction or sentence or where the right of appeal to the
High Court has been conferred by statute. Despite being specifically asked, counsel
for the applicant has been unable to point to any statutory provision which
entitles an aggrieved person to appeal to the High Court against the issuing of
a search warrant by a magistrate.
In
the absence of any right of appeal to the High Court, it appears to me that a
search warrant issued by a magistrate can only be impugned on review and not
appeal. That being the case, the prospects of the High Court entertaining the
appeal pending before it in respect of this matter are pretty deem indeed.
The applicant also belatedly
almost as an afterthought sought to attack the search warrant on the basis of
irregularity complaining that the magistrate made no record of the proceedings
leading to the issuing of the search warrant. That complaint amounts to an
attack on the validity of the proceedings before the magistrate.
It is correct to say that in
terms of s 5 of the Magistrates Court Act [Cap.
7:10] the Magistrates Court is a Court of record. The magistrate is
therefore, duty bound to maintain an accurate written record of all proceedings
before him. See S v Ndebele 1988 (2) ZLR
249. No record of proceedings has however been placed before me to
ascertain what transpired at the magistrates court. I was simply told from the
bar that the magistrate did not record the proceedings. Apart from counsel's
mere say so from the bar no effort was made to contact either the magistrate or
the clerk of court for an explanation.
In the absence of an explanation from
the magistrates' court I am not prepared to condemn the magistrate and hold
that he did not do his job properly. There is a presumption in favour of
validity of all official documents issued by government officials in the course
of duty. The search warrant is therefore considered valid until proven otherwise.
The onus was on the applicant
to prove on a balance of probabilities that the warrant is invalid on account of
the alleged irregularity. This, the applicant has failed to do. In any case
such a complaint ought to have been brought by way of review after affording
the magistrate a chance to be heard.
The main thrust of the
applicant's argument is however based on the common law rules enunciated in the
case of Phiri & Others v Industrial
Steel and Pipe (Pvt) Ltd 1996 (1) ZLR45 (S) to the effect that the noting
of an appeal suspends the decision appealed against. That case should however
be contrasted with the decision of MUNGWIRA J in the case of Founders Building Society v Mazuka (1) ZLR
526 531 in which she quoted Gillespie with approval in the case of Vengesai & Others v Zimbabwe Glass
industries 1998 ZLR 593 (H) at 598 where the learned judge remarked that:
“In stating the common law, CORBETT JA referred to the automatic stay of execution
upon the noting of appeal, as a general rule of practice. That is, not a rule
of law, but a long established practice regarded as generally binding, subject
to the court's discretion. The concept of a rule of practice is peculiarly
appropriate only to superior courts of inherent jurisdiction. Any other court,
tribunal or authority is a creature of statute and bound by the four corners of
its enabling legislation. Moreover, the authorities cited by CORBETT JA are
authorities relevant to appeals from superior courts
…
It follows that in the absence of any statute specifically
conferring such discretion on an inferior tribunal or authority or otherwise
regulating the question of enforcement of judgments pending an appeal from that
authority, no such discretion can exist. Such a court or authority can exercise
only the powers conferred by the statute”
The applicant has failed to
point to any legislation authorizing the automatic suspension of the search
warrant upon appeal in the magistrates court. I must however state that while I
prefer the dicta of GILLESPIE J in the Vengesai case (supra) I am bound by the decision of Mc NALLY JA emanating from the
Supreme Court in the Phiri case (supra).
That principle is however,
inapplicable in this case for the simple reason that the appeal that the
applicant has lodged appears to be a nullity and of no force or effect. It is
trite that for an applicant to succeed in an application for an interdict, he
must establish a clear right. In this case it can not be said that the
applicant has established a clear right when the basis of the application is
founded on what appears to be a nullity.
Viewed from a different angle,
there was no appeal against the police's bid to proceed in terms of s 54 (2)
(a) and (b). There is also no order barring the police from proceeding in terms
of that section.
On the facts before me the
allegations made by the police give rise to a reasonable suspicion that an
offence may have been committed emanating from Ms Petronella Chishawa's trips
abroad. It is not denied that Ms Chishawa works in the Ministry of Finance
where the applicant is the responsible minister. Whether or not the applicant
showed favour to her when she embarked on the said trips is a matter of
evidence. It is not unreasonable for the police to suspect that such evidence
may be found in the record of the history of calls he might have made to his subordinates
or colleagues. For that reason, I have no basis for barring the police from
proceeding in terms of s 54 (2) (a) and (b) of the Criminal Procedure and
Evidence Act. There being a reasonable suspicion the question of inversion of
privacy does not arise.
While the applicant has the
right to privacy under section 18 of the Constitution, that right is not
absolute. The police also have the legal right to detect, investigate and
arrest suspects. Thus where the police have reasonable cause to investigate
crime the subject's right to privacy must of necessity give way for the common
good and public interest to fight crime.
The law does not prohibit
lawful inversion of privacy. What it prohibits is wanton and unlawful inversion
of privacy. In this case as the police appear to be acting according to law,
the application can not succeed. Not surprisingly the 4th respondent
has pledged to abide by the decision of this Court and not take sides one way
or the other.
It is
accordingly ordered:
1.
That the application for an interdict barring the first,
second and third respondents from accessing any information concerning the
applicant's calls be and is hereby dismissed.
2.
That the applicant's application for an interdict
barring the fourth respondent from providing the first, second and third
respondents with any information concerning the applicant's calls be and is
hereby dismissed.
3.
The fourth respondent shall abide by this Court's
decision.
4.
The applicant shall bear the costs of suit.
Atherstone &
Cook, applicant's Legal Practitioners
Attorney general's
Office the, 1st, 2nd and 3rd
Respondents' Legal Practitioners.
