ZIYAMBI
JA:
At
the end of the hearing the application was dismissed and it was
indicated that reasons for the decision would follow in due course.
These are the reasons.
This
matter was referred to the Supreme Court by the Magistrate in terms
of section 24(2) of the Constitution of Zimbabwe which provides as
follows:
“24
Enforcement of protective provisions
(1)
….
(2)
If in any proceedings in the High Court or in any court subordinate
to the High Court any question arises as to the contravention of the
Declaration of Rights, the person presiding in that court may, and if
so requested by any party to the proceedings shall, refer the
question to the Supreme Court unless, in his opinion, the raising of
the question is merely frivolous or vexatious”.
The
referral came about in the following manner.
On
8 February 2012, the applicant, who is a registered legal
practitioner, appeared before the Magistrate in Gweru in response to
a summons to answer a charge of contravening section 16(2)(b) of the
Public Order and Security Act [Cap
11:17].
The
offence was allegedly committed on 25 June 2005.
When
the charge was put to him, the applicant did not plead to it but
instead made an application for the matter to be referred to the
Supreme Court in terms of section 24(2). It was his intention to seek
an order:
“For
a permanent stay of prosecution in terms of the Constitution of
Zimbabwe in section 18(2) on the basis that my right to a fair trial,
within reasonable time has been violated”.
He
alleged that the charges emanated from an incident which occurred on
25 June 2005 in Zaka and that a warned and cautioned statement was
recorded in July of the same year.
The
delay in bringing him to trial amounted to six years and eight
months.
The
allegation was that the delay was attributable to the conduct of the
State because he resides in Masvingo and has never removed himself
from the jurisdiction of the courts. He averred that nothing could
have been done by him to assert his rights especially as the matter
was not brought to court on a remand hearing.
He
alleged further that “the only [State] witness who is available”
had his statement recorded on 26 June 2005. According to him, the
investigations were then complete and the prosecution ought to have
taken place at the latest in December 2007 when authority was granted
by the Attorney General to prosecute. He alleged that the failure by
the State to bring him to trial within a reasonable period
constituted a violation of his constitutional right enshrined in
section 18 of the Constitution.
The
Prosecutor in response submitted that the delay “was not a
deliberate act by the State”.
In
the first place, one of the State witnesses had died. Secondly,
there was, on record, a letter dated 10 August 2008 wherein the
applicant had requested that he be prosecuted by a person who did not
know him; and thirdly, the applicant is a Deputy Minister tasked with
national duties and the police were having difficulties in effecting
personal service of the summons on him.
After
the authority to prosecute was granted by the Attorney General in
2007, there was a shortage of resources and transport.
The
Prosecutor further alleged that when the matter was due to be heard
the Director of Public Prosecutions directed that the trial be heard
in Gweru and not Masvingo.
Most
of the court officials declined to deal with the matter because they
knew the applicant on professional grounds and, even on the date of
the hearing, two court officials refused to entertain the matter on
professional grounds.
Accordingly
the delay could not be wholly attributable to the State.
No
evidence whether on affidavit or viva
voce
was led by the applicant in support of his allegations.
This
is totally unacceptable.
In
S
v Banga
1995 (2) ZLR 297 this Court remarked as follows:
“Regrettably,
the manner in which the legal practitioner requested the referral was
totally misconceived. It was wholly insufficient to make a statement
from the bar, and then to point soley to the length of the delay. He
was obliged to call the applicant to testify to the extent to which,
if at all, the cause of the delay was his responsibility; to whether
at any time before 16 August 1994, he had asserted his right to be
tried within a reasonable time; and, even more importantly, to
whether any actual
prejudice had been suffered as a result of the delay. Such a
fundamental omission on the part of the defence is fatal to the
success of the application.”
The
Magistrate was satisfied that the raising of the question of the
violation of the applicant's constitutional right was not
frivolous. He referred the matter to this Court.
The
referral was improper.
This
Court has so stated time and time again. As far back as 1995, it was
said:
“It
seems to me, also, that before permitting an accused person to raise
the question of not having been brought to trial within a reasonable
time, the lower court should be satisfied that ample written notice
has been given to the State, with a copy filed of record, of the
intention to advance the complaint. The prosecution is entitled to
be afforded the time and opportunity to investigate the cause of the
delay and to be ready to adduce evidence as to the reasons therefor,
if it is considered necessary to do so”.
The
prosecutor must be given written and adequate notice of the accused
person's intention to make the application. The Magistrate must
hear evidence from the applicant and the Prosecutor must be given an
opportunity to cross examine the applicant and to lead any evidence
it considers necessary after which the Magistrate must make a ruling
based on the evidence. However this was not done.
At
the hearing before this Court, it was glaringly apparent that there
were disputes of fact which needed to be resolved.
It
is the function of the referring court to resolve disputes of fact.
It
goes without saying that a delay of seven years in prosecuting a
criminal charge is presumptively prejudicial and would, generally
speaking, trigger an inquiry by this Court into the constitutionality
of the delay.
However
the applicant has placed no evidence before the Court from which it
can be concluded that the delay in bringing him to trial is totally
attributable to the State, has caused him prejudice and is a
violation of his right to a fair trial.
I
stress here that the absence of evidence is fatal to the application.
In
S
v Banga
it was held that the absence of viva
voce
evidence could be fatal to an applicant's case because it
“completely disables findings to be made that the long delay has
been the cause of mental anguish and disruption to the business and
social activities of the accused… and that it has impaired his
ability to exonerate himself from the charge due to death,
disappearance or forgetfulness of potential witnesses”.
The
application in casu,
having no evidential basis, is fatally defective.
MALABA
DCJ:
I agree
PATEL
AJA:
I agree
Attorney
General's Office,
respondent's legal practitioners
1.
S v Banga supra at p302
2.
See Gadzanai Nkomo & Anor v The State SC52/06
3.
Supra at p301
