CHIDYAUSIKU CJ: This application was referred to this Court
by the court a quo in terms of
s 24(2) of the old Constitution of Zimbabwe (hereinafter referred to as
“the Constitution”). The facts forming
the background to this application are the following –
The applicant was
charged in the magistrate's court with two counts of fraud as defined in
s 136(B) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In Count One it is alleged that on
19 February 2008 and at no. 30 East Road, Avondale, Harare, the
applicant unlawfully, and with intent to defraud, misrepresented to the
complainant in Count One that he was selling a property, stand number 521
St Patrick's Close, Helensvale Township, Harare (“the stand”), when he
well knew that he was not selling the said property but only intended to induce
the complainant in Count One to act upon the misrepresentation and pay him
some money. As a result of this
misrepresentation the complainant in Count One paid the applicant the sum
of US$62,000 (Sixty-two thousand United States dollars), thereby causing the
complainant in Count One to suffer prejudice in the amount of US$62,000
(Sixty-two thousand United States dollars).
In Count Two it is alleged that on 11 October 2008 and at
no. 30 East Road, Avondale, Harare, the applicant unlawfully, and with
intent to defraud, misrepresented to the complainant in Count Two that he
was selling a property, stand number 521 St Patrick's Close,
Helensvale Township, Harare, yet in truth and in fact he was not selling the
said property. The applicant made the
misrepresentation when he well knew that he was not selling the said property
but only intended to induce the complainant in Count Two to act upon the
misrepresentation. The complainant in
Count Two paid the applicant the sum of US$48,500 (Forty-eight thousand five
hundred United States dollars), thereby causing the complainant in Count Two
to suffer prejudice in the amount of US$48,500 (Forty-eight thousand five
hundred United States dollars). In
short, the applicant sold the same stand to two different people from whom he
received the above amounts.
The applicant was
arrested by the police in connection with the above allegations. He was made to sign a warned and cautioned
statement on 15 February 2009 after being formally advised that criminal
proceedings were being preferred against him.
On 17 February 2009 he was placed on remand on these allegations. On 05 November 2009, after attending
court on no less than ten occasions, further remand was refused.
It would appear from the record that some time in November 2010 a
decision was arrived at by a law officer in the then Attorney-General's Office
to decline prosecution, on the ground that the allegations against the
applicant do not constitute a criminal offence. He opined that the allegations against the
applicant constituted a civil wrong, for which the complainant could sue the
applicant. Quite clearly, this
conclusion by the law officer is erroneous.
The alleged conduct of the applicant, if proved, constitutes both a
criminal offfence and a civil wrong.
In May 2011 the
Attorney-General rescinded his earlier decision to decline prosecution and
directed that the applicant be re-summoned to attend court. It would appear that the Attorney-General
rescinded the earlier erroneous decision after representations from the
complainant in Count One.
On 10 August 2011
the applicant was placed on remand and thereafter remanded on a number of
occasions.
On 20 February 2012
the applicant made an application for referral of this matter to this Court for
determination in terms of s 24(2) of the Constitution. The trial magistrate granted the application
and the matter was referred to this Court.
Two issues fall for determination in this application –
1. Whether
the applicant's right to a fair hearing within a reasonable time, as enshrined
in s 18 of the Constitution, was violated; and
2. Whether
the applicant's right to protection of the law, as enshrined in s 18 of
the Constitution was violated by the State, in that the Attorney-General
rescinded his decision not to prosecute the applicant after receiving
representations from the complainant in Count One.
Counsel for the
applicant made detailed submissions in support of these two grounds.
I will deal with the second
ground first. The submission that a
complainant's representation to the Attorney-General to reconsider his decision
in a criminal matter is unconstitutional and violates the accused's right to
protection of the law as it undermines the independence of the Attorney-General
is misconceived. A complainant in a
criminal matter has a substantial interest in the prosecution of an accused. In my view, a complainant is perfectly
entitled to make representations to the Attorney-General regarding such
prosecution. The Attorney-General is
not bound to accept such representations.
He can either accept or reject such representations depending on whether
or not he finds merit in the representations.
In terms of the law, where the Attorney-General does not accept the
representations the complainant is entitled to a certificate of nolle prosequi – see s 13, as read
with s 16, of the Criminal Procedure and Evidence Act [Chapter 9:02]. The mere fact that representations have been
made does not in any way interfere with the independence of the
Attorney-General, who is free to accept or dismiss such representations. In fact this submission is as absurd as
submitting that the Court's independence is compromised by submissions by
counsel.
This ground of challenge therefore
fails.
I now turn to the first ground of challenge, namely
the alleged inordinate delay in bringing this matter to trial. This Court has dealt with applications for
stay of prosecution on the grounds of inordinate delay in trying the accused on
numerous occasions and the law is now well settled. In the leading case of In Re Mlambo 1991 (2) ZLR 339 (SC), this Court set out the
procedure to be followed and the factors that a court takes into account in
deciding whether the applicant's right to a fair trial within a reasonable time
has been violated or not. The following
are the factors to be taken into account in making a determination –
1. the explanation and
responsibility for the delay;
2. the assertion of his
right by the accused person;
3. the prejudice arising
from the delay; and
4. the
conduct of the prosecution and of the accused person in regard to the trial.
The case of In Re Mlambo supra has been followed in
numerous cases. In the case of S v Banga 1995 (2) ZLR 297 (S) at
pp 300 F-G the Court had this to say:
“The principles which govern
applications of this nature are now well settled. They were set out in In re Mlambo (supra) and have since been applied on many occasions;
more recently in Hungwe & Ors v A-G
S-50-94; S v Matarutse S-101-94 and S v Marisa S-126-95.
In this application, the period of
slightly over four years was presumptively long enough to trigger an enquiry
into the factors that go into the balance in the determination of whether the
delay in bringing the applicant to trial was reasonable in the pertaining
circumstances. These factors are –
(i) the explanation and
responsibility for the delay;
(ii) the assertion by the
applicant of his fundamental right to a hearing of the case within a reasonable
time;
(iii) the existence of any
prejudice suffered by the applicant resulting from the delay.”
To enable this Court to
properly determine the factors set out in In
re Mlambo supra, certain peremptory requirements have to be met by the
applicant making such an application. In
Banga's case supra at pp 300G-301B the Court pronounced itself 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 solely 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.
This Court has stressed frequently that if an accused is of the view
that the State is dragging its feet in bringing him to trial, he must assert
his constitutional right to be tried within a reasonable time and in default of
compliance with such protest seek a stay of proceedings. See S
v Ruzario 1990 (1) ZLR 359 at 367F-G; In
re Mlambo supra at 354B-C; S v
Musivitisi & Anor S-229-93 at p 6; S v Matarutse supra at p 3.”
The Court
went further to state the following at pp 301F-302A:
“I trust that I have made it clear that it is essential for an accused,
who requests a referral to this Court of an alleged contravention of the
Declaration of Rights, to ensure that evidence is placed before the lower
court. It is on that evidence that the
opinion has to be expressed as to whether the question raised is merely frivolous
or vexatious. It is on that record that
the Supreme Court hears argument and then decides if a fundamental right had
been infringed. Only in exceptional circumstances
will an applicant be permitted to supplement the record of the proceedings before
the lower court by the production of affidavits. Cogent reasons will have to be provided as
to why the further evidence was not presented to the lower court. The well known requirements laid down in Farmers' Co-op Ltd v Borden Synd (Pvt) Ltd
1961 R & N 28 (FS), 1961 (1) SA 441 (FS) and as discussed latterly in Leopard Rock Hotel Co (Pvt) Ltd v Walenn
Const (Pvt) Ltd 1994 (1) ZLR 255 (S) and Bevan Trading (Pvt) Ltd v Voest-Alpine Intertrading GbmH S-149-94,
will have to be met.”
In casu, the legal practitioner for the
applicant did not fully appreciate what was required of him. He only made submissions from the Bar and
simply pointed 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 or that of the
prosecutor. He was required to place
before the magistrate's court evidence as to whether at any time before
28 February 2012 the applicant had asserted his right to a fair trial
within a reasonable time and, even more importantly, whether or not actual
prejudice had been suffered as a result of the delay. See S
v Nkomo and Anor SC 89/03.
The failure by the
applicant's legal practitioner to place evidence before the magistrate's court,
which evidence would have assisted this Court in assessing the relevant facts
in this case, was fatal.
Accordingly, the
application is dismissed. There will be
no order as to costs.
MALABA DCJ: I agree
ZIYAMBI JA: I agree
GWAUNZA JA: I agree
GARWE JA: I agree
GOWORA JA: I agree
PATEL JA: I agree
HLATSHWAYO JA: I
agree
GUVAVA JA: I agree
Nyakutombwa|Mugabe Legal Counsel, applicant's legal
practitioners
