In this application, the applicant seeks the following relief: 1. A declaration that the refusal by the Magistrate to refer the issues raised by the applicant to the Supreme Court is wrong at law, and, consequently, a breach of the applicant's right to the ...
In this application, the applicant seeks the following relief:
1. A declaration that the refusal by the Magistrate to refer the issues raised by the applicant to the Supreme Court is wrong at law, and, consequently, a breach of the applicant's right to the protection of the law enshrined in section 18(1) of the former Constitution of Zimbabwe.
2. A declaration that the decision by the Attorney-General to proceed with the prosecution of the applicant, more than five years after the alleged commission of the offence, is a violation of the applicant's right to the protection of the law under section 18 of the former Constitution.
3. A declaration that the present application is properly before the Supreme Court.
4. An order, that, the prosecution of the applicant, being a violation of her right under section 18, such prosecution be and is hereby permanently stayed.
5. An order that the respondents pay the costs of this application.
THE BACKGROUND
The applicant and one Cecil Rhaniel Chengetai Muderede (“Muderede”) were engaged in an intimate relationship until about 2005 when the relationship came to an end. At the centre of the dispute giving rise to the present proceedings are two properties:
The first is Number 4 Goodall Avenue, Emerald Hill, Harare registered in the name of Helce Enterprises (Pvt) Ltd, a company incorporated according to the laws of Zimbabwe. It is common cause, that, from the time of its incorporation, the applicant's name appeared on the official records of the company as one of the two directors of the company.
The second property is Number 106 Lomagundi Road, Avondale, registered in the name of another company, Drisdane Investments (Pvt) Limited. It is not in dispute that it was Cecil Rhaniel Chengetai Muderede who purchased this property.
In May 2004, Cecil Rhaniel Chengetai Muderede was specified under the Prevention of Corruption Act [Chapter 9:16].
Following this development, the applicant proceeded to the offices of the Registrar of Companies, where, using the specification of Cecil Rhaniel Chengetai Muderede, she was able to remove the name of Muderede as a director of Helce Enterprises, and, in his place, had the names of her brothers, Kumbirai Matiashe and Kudzai Matiashe, substituted as directors.
On the strength of a Board resolution passed by the new Board, the applicant was able to obtain a duplicate copy of the Deed of Transfer for Number 4, Goodall Avenue, Emerald Hill. The applicant was able, using the same modus operandi, to get another duplicate copy of the title deeds for Number 106 Lomagundi Road, Avondale.
On 7 June 2007, Cecil Rhaniel Chengetai Muderede filed a complaint of fraud against the applicant with the police.
The allegation, on both counts, was that the applicant had misrepresented that Cecil Rhaniel Chengetai Muderede had resigned as a director of Helce Enterprises (Private) Limited and Drisdane Investments (Private) Limited, and, in his place, had appointed her two brothers, Kundai Matiashe and Kumbirai Matiashe. It was alleged, that, on the basis of the misrepresentation, the applicant managed to get duplicate title deeds for both properties.
On 25 June 2007, the applicant made a statement to the police. She was, thereafter, placed on remand.
On 26 February 2008, the charges against the applicant were withdrawn by the State.
However, on 17 July 2012, the applicant was served with summons to appear in court on 6 August 2012.
On 21 August 2012, the applicant then filed an application in the Magistrates Court seeking a declaration that the decision by the Attorney-General to try her after six years violated her right to the protection of the law enshrined in section 18 of the Constitution and that the matter be referred to the Supreme Court in terms of section 24(2) of the former Constitution.
In papers filed before the Magistrates Court, the appellant stated, that, the delay of six years during which no trial had taken place was wholly attributable to the State.
She had always been available to attend court to answer any allegations. Further, she stated that one of her defence witnesses, Doctor Iris Sarupinda, who was present during the time she had a relationship with Cecil Rhaniel Chengetai Muderede, had relocated to Europe and she was not aware of her present whereabouts.
The appellant did not give oral evidence in support of her application.
In the Magistrates Court, it was not in dispute that on 24 July 2009 and 2 November 2010 the applicant filed a complaint with the police against Cecil Rhaniel Chengetai Muderede and his wife Michelle. In the complaint, she alleged that the two had fraudulently used the title deeds for the two properties to secure mortgage loans in favour of Shankuru Estates. She also complained that a Mr Magwere, from the office of the Registrar of Deeds, a Mr Shadreck Beni from Metropolitan Bank, and one Mujokoro, a legal practitioner, had colluded with Muderede and his wife in the fraudulent registration of the mortgage bonds over the two properties.
The State opposed the application for referral of the matter to this Court and led evidence from the Investigating Officer, Detective Inspector Charles Chirove.
The Investigating Officer told the court, that, a number of factors had contributed to the delay in the prosecution of the matter. In 2008 and 2009, the country experienced a severe economic meltdown which affected the ability of the police to carry out its functions. At one stage, the police received reports that Cecil Rhaniel Chengetai Muderede was in South Africa.
Because Cecil Rhaniel Chengetai Muderede could not be located, the charges against the applicant were withdrawn.
Thereafter, in 2009 and 2010, the applicant filed reports with the police, based on the same facts, against Cecil Rhaniel Chengetai Muderede, his wife, and other persons resulting in the arrest of Muderede on fraud charges.
When both cases were sent to court, Cecil Rhaniel Chengetai Muderede queried why his complaint, which had been filed earlier, was being overtaken by the complaint filed later by the applicant. Muderede even approached the Anti-Corruption Commission alleging that the police were giving the applicant preferential treatment.
The applicant also harassed the police and even made complaints to Police General Headquarters against the witness and several of his fellow officers. She was saying she wanted to be consulted before the police made any decision on this matter.
He told the court he formed the opinion that the applicant was throwing spanners into the works to ensure that the matter went nowhere.
In an effort to make some progress, the State then reached an agreement with the applicant and Cecil Rhaniel Chengetai Muderede, that, the case in which Muderede was an accused was to be tried first. In the event that Muderede was convicted, then, the case in which he was complainant would die a natural death. However, in the event that he was acquitted, then, the case in which the applicant was an accused would then commence.
As it so happened, Cecil Rhaniel Chengetai Muderede was acquitted in 2012 as a result of which the applicant was then summoned to appear in court....,.
In dismissing the application for the referral of the matter to the Supreme Court, the magistrate commented:
“Accused now wants to renege from her commitment that she would only be prosecuted if only Cyril Muderede was acquitted because the facts forming the basis of the court charges were similar. Cyril Muderede has now been acquitted, so, the natural interpretation of their agreement should follow. Accused participated in circumstances which caused the delay so she should not cry foul, because, if she had no hand in this matter, the State could have proceeded to cause the trial of both matters at the same time but in different courts.
Accordingly, I find that the application is just meant to further delay proceedings and it is frivolous and vexatious. Accordingly, the application is dismissed.”
It is common cause, that, at the time of the making of the application, there had been a delay of over five years in the prosecution of the matter.
That this delay was presumptively prejudicial is without doubt.
The applicant was entitled to challenge the decision of the State to prosecute her on a charge of fraud in respect of which she had been charged more than five years previously.
The delay was such as to trigger an inquiry into the possible violation of the applicant's rights to the protection of the law....,.
The delay in bringing the applicant to trial is reckoned from 25 June 2007 when she was charged: see Shumba v Attorney-General 1997 (1) ZLR 589, 592G (S).
The fact that charges were withdrawn in 2008 is irrelevant. The clock continued ticking.
See In re Mlambo 1991 (2) ZLR 339 (S)…,.
