The facts of this matter are as follows.
The applicant was arrested by members of the second
respondent on 26 November 2011 on allegations of contravening section 136
of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
(hereinafter referred to as “the Act”). He appeared in the Harare Magistrates Court
on 29 November 2011 facing three counts of fraud, as defined in section 136
of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and two counts of theft,
as defined in section 113 of the Act. He was placed on remand and bail was
denied.
His trial was finally set down for 28 May 2013 before
a Regional Magistrate.
The State then dropped the fraud and theft charges and
substituted in their place a charge of contravening section 5(1)(a)(ii) of
the Exchange Control Act [Chapter 22:05] as read with section 13(2)
of the Exchange Control Regulations, 1996 ('the Regulations'), that is,
externalisation of property rights or patents without the authority of the
Reserve Bank of Zimbabwe ('the Reserve Bank'). The applicant was notified of
the new charge well before the trial date.
On 27 May 2013, a day before the trial was due to
commence, the applicant filed an application excepting to the charge. In this
application, the applicant challenged the lawfulness of his arrest by members
of the second respondent. He submitted that members of the second respondent
did not have arresting powers. He also argued that his right to a fair hearing
was infringed by the State, in that he was previously charged with fraud and
theft at his initial appearance, charges which were totally different from the
one he was now facing at the trial but emanating from the same transaction.
The application excepting to the charge was found to be
without merit and dismissed by the magistrate on 28 June 2013. The trial
then commenced.
On 24 July 2013, the applicant made yet another
application to have his matter referred to the Constitutional Court in
terms of section 175(4) of the Constitution of Zimbabwe (hereinafter
referred to as 'the Constitution'). In the application for referral, the
applicant contended that the dismissal of the exception violated his
constitutional rights in the following respects –
a) The right to be informed promptly of the charge in
sufficient detail to enable him to answer it, in contravention of section 70(1)(b)
of the Constitution;
b) The right not to be convicted of an act or omission that
was not an offence when it took place, protected under section 70(1)(k) of
the Constitution;
c) The right to equal protection and benefit of the law,
enshrined in section 56(1) of the Constitution;
d) The right to a fair and public hearing within a
reasonable time before an independent and impartial court, protected under section 69(1)
of the Constitution; and
e) The right to acquire, hold, occupy, use, transfer,
hypothecate, lease or dispose of all forms of property, either individually or
in association with others, as enshrined in section 71(2) of the
Constitution.
The application for referral was also dismissed.
The magistrate dismissed the application on the grounds
that it was a ploy to delay the trial. It would appear the court a quo did
not apply its mind to the issue of whether or not the application was frivolous
and vexatious.
This, clearly, was a misdirection.
The applicant now approaches this Court in terms of section 85(1)
of the Constitution. In my view, two issues fall for determination by this
court, namely;
(1) Whether or not the application is properly before this
Court;
(2) If the application is properly before this Court,
whether or not the applicant has established that his rights, guaranteed by sections 70(1)(b),
70(1)(k), 56(1), 69(1)and 71(2) of the Constitution, have been violated by the
dismissal of his application for exception to the charge….,.
I now turn to the second issue of whether or not the
applicant has established that his rights, guaranteed under sectionss 70(1)(b),
70(1)(k), 56(1), 69(1)and 71(2) of the Constitution, were violated.
Counsel for the first respondent argued that the applicant
did not come anywhere near establishing any one of the grounds setting out the
basis of the alleged violation of his constitutional rights. She submitted that
the first respondent had since dropped the fraud and theft charges which the
applicant was arrested for and initially brought to court on. The applicant is
only facing the charge of contravening section 5(1)(a)(ii) of the
Exchange Control Act [Chapter 22:05] as read with section 13(2) of the
Exchange Control Regulations, 1996, that is, externalisation of property rights or patents
without the permission of the Reserve Bank.
It is common cause that in April 2013 the applicant was advised of his
trial date, being 28 May 2013. On 22 April 2013, State papers were
served on the applicant, informing him of the charge he was now facing under
the Exchange
Control Act [Chapter 22:05] and Exchange Control Regulations, 1996.
A day before the trial date, the applicant filed an application for
exception, excepting to the charge on the basis that his arrest was unlawful
and that the outline of the State case did not disclose an offence. The
application was determined and dismissed by the fourth respondent.
It is the dismissal of that application which the applicant avers
contravenes his rights under sections 70(1)(b), 70(1)(k) and 70(2) of the
Constitution.
The right protected under section 70(1)(b) of the Constitution is
twofold, namely –
(a) The right to be informed, promptly, of the
charge; and
(b) The right to be informed of the charge in
sufficient detail to enable a person to answer it.
The facts of this matter show that the
applicant was timeously informed of the charge he was facing, was given
sufficient details of the charge and given ample time to prepare his defence.
The applicant was given all the State papers that he needed to prepare for his
trial. In fact, he was given all the information that the first respondent had
in its possession and intended to use against him at the trial. The applicant
was never denied access to any document or information that he intended to use
in defending himself.
I am accordingly satisfied that he was given
sufficient notice of the charge he was facing to enable him to answer the
charge. The charge which the applicant was facing emanated from the same set of
facts as that of the fraud and theft charges that were dropped. There was no
prejudice suffered by the applicant in the changing of the charge and notifying
him of the same. The applicant was given more than a month to prepare for his
trial, which is sufficient time for one to prepare for trial.
The applicant also failed to prove in what
manner his right to be informed promptly of the charge in sufficient detail was
infringed, so as to justify a permanent stay of the proceedings against him.
The applicant's right to a speedy trial was not
in any way violated by the dismissal of the application for exception to the
charge. Neither was his right enshrined under 71(2) infringed.
This ground of the application cannot succeed.
The applicant also alleged that his right,
enshrined in section 70(1)(k) of the Constitution, had been infringed. In
his application, it was never explained how this right had been infringed. The
heads of argument filed by counsel for the applicant failed to substantiate
this allegation.
Section 70(1)(k) of the Constitution
ensures that the State does not apply penal statutes with retroactive or
retrospective effect. In terms of this section, conduct in the form of an act
or omission that at the time it took place did not constitute an offence cannot
thereafter become an offence for which a person can be prosecuted and punished.
The acts or omissions complained of in the
State Outline in this matter reveal that the offence disclosed in section 5(1)(a)(ii)
of the Exchange Control Act [Chapter 22:05] as read with section 13(2)
of the Exchange Control Regulations, 1996, that is, externalisation of property
rights or patents without the authority of the Reserve Bank, was in existence
at the time the alleged offence was committed. The statutory provisions which
the applicant is alleged to have contravened did not come into existence after
the alleged conduct of the applicant.
Again, this ground of the application for the permanent
stay of criminal proceedings cannot succeed.
Counsel for the first respondent argued that the matter
should be referred back to the Regional Magistrates Court for a continuation of
the trial. She, however, conceded that the proceedings should be set aside and
the trial commenced de novo before a different Regional Magistrate.
In my view, this concession is properly made for the
following two reasons –
(i) First, the attitude of the fourth respondent in this
application reveals that the applicant may be justified in fearing that he may
not get a fair trial before the same magistrate.
This arises from the stance adopted by the trial magistrate
to this application.
A trial magistrate should not oppose an application such as
this one. He or she should simply place before the court facts he or she
believes will assist the court in arriving at a correct decision and undertake
to abide by the decision of the court. Opposing an application such as this one
is likely to lead to the perception by an accused person that he or she will
not get a fair hearing from a court that opposed his application.
(ii) Secondly, the trial magistrate has concluded, in his
ruling in respect of the application by the applicant's co-accused and in a
similar application by the applicant, that there was a need to hear evidence on
whether or not externalisation of copyrights and/or patents without the
authority of the Reserve Bank constitutes a contravention of section 5(1)(a)(ii)
of the Exchange Control Act [Chapter 22:05] as read with section 13(2)
of the Exchange Control Regulations, 1996.
I have serious reservations regarding the correctness of
this conclusion.
The law is the law. There is no need to hear evidence to
establish the law. In any trial, evidence is required to establish facts and
not the law. A trial court can hear submissions from counsel on what the law
is, but it cannot seek to hear evidence to determine what the law is except in
instances where the court seeks to establish foreign law, in which case
evidence on foreign law from experts is admissible.
In my view, after hearing submissions by the parties, the
learned magistrate should have determined whether the facts alleged by the
State constituted an offence or not. Failure to make that determination could
possibly lead to a violation of the constitutional right of the applicant to
protection of the law.
In the case of Williams and Anor v Msipha N.O. and Ors SC22-10,
this Court held that putting an accused on trial on facts, which even if proved,
do not constitute an offence is a violation of the right to protection of the
law guaranteed by the Constitution.
In the result, the application for stay of
prosecution was dismissed, the proceedings set aside, and a trial de novo
was ordered in the event that the Prosecuting Authority still wishes to proceed
with the matter despite the observations made herein.
