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 s 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 s 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 s 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 s 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
