This is a matter that was referred to this court by a
magistrate in terms of section 24(2) of the former Constitution of Zimbabwe,
(“the former Constitution”).
The applicant was arraigned before a magistrate at Harare
on a charge of assaulting or resisting a peace officer as defined in section
176 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The
allegation was that on 14 December 2006, at Makomva Shopping Centre, Glen View
2, Harare, the applicant assaulted one Everisto Maponga, a police officer, who
was performing his duty, by pushing him away with both hands.
Before this court, the applicant seeks the permanent stay
of his prosecution on the ground that his right to a fair trial within a
reasonable time, before an impartial court, has been violated and that this was
through no fault on his part.
After hearing submissions by both parties, this court
issued an order dismissing the application as being without merit, with no
order as to costs. It was indicated that the reasons for this order would
follow in due course.
The following are the reasons.
BACKGROUND
The summary of the State case reflects that on
14 December 2006 a team of police detectives, one of whom is the
complainant, was on patrol in the Glen View area in Harare. When the team
arrived at Makomva Shopping Centre, Everisto Maponga ('the complainant')
observed a motor vehicle that was parked with its boot partially open. The
complainant and a fellow detective approached the motor vehicle and observed a
motor vehicle engine protruding from its boot.
The complainant requested one of the occupants of the
vehicle to step out. The occupant, who later turned out to be one Onwell
Kadembo, stepped out of the vehicle. The complainant and his colleague produced
their police service identity cards and requested the occupant (Onwell
Kadembo), who had stepped out, to identify himself. Onwell Kadembo went back to
the vehicle and brought back the applicant's particulars. Whilst the
complainant was talking to Onwell Kadembo, the applicant, who was seated in the
driver's seat of the parked vehicle, got out and charged towards the
complainant. He pushed the complainant causing him to stagger backwards. The
applicant charged towards the complainant again but was restrained from further
attacking him by other detectives who were nearby and who then arrested him.
On 29 December 2006 the applicant was placed on remand.
The application for referral was made before the applicant
had pleaded to the charges. The applicant's legal practitioner applied for the
matter to be referred to the Supreme Court, then sitting as the Constitutional
Court, for a determination as to whether the applicant's right, in terms of section
18(1) and (2) of the former Constitution, to a trial within a reasonable time
had not been violated. This was in view of the time that had elapsed before the
applicant's trial commenced. The application was to the further effect that if
the Constitutional Court found that the applicant's right had been violated,
the prayer before it would be for an order that his prosecution be permanently
stayed.
APPLICANT'S
EVIDENCE DURING THE APPLICATION BEFORE THE MAGISTRATE
The applicant gave evidence in support of the said
application. He said that he was a Member of Parliament for Glen View South
constituency. He also said that he had appeared in court several times on
account of the allegations of assaulting a peace officer and that the matter
was repeatedly remanded due to various reasons. On some occasions, the reason
given was that the docket was not ready and on others it was that the witnesses
were not available.
His evidence was generalised as he did not assign a
specific reason for each postponement on the specific dates when he appeared in
court.
The applicant also testified that besides nine police
officers who witnessed the incident, there was one other person, a civilian,
one Onwell Kadembo, whom he would have wished to call as a witness in the event
the matter came to trial. However, he could no longer do so as the said Onwell
Kadembo was out of the country and could not be traced. He averred that he had
thus been prejudiced by the delay in bringing the matter to trial over the
years and also by the fact that, due to the nature of his work, he was
sometimes forced to cancel work-related trips. He further stated that he and
his family also suffered anxiety and trauma owing to the fact that he had to go
to court endlessly.
It was also the applicant's evidence that he has always
been available to stand trial as he was always either at home or at work and
that the police could have found him and served him with summons had they
conscientiously made the effort to do
so.
The prosecutor declined to cross-examine the
applicant.
The record does not reflect any formal indication that the
applicant did not wish to call any other witnesses but no further evidence was
adduced on his behalf.
SUBMISSIONS
BY THE APPLICANT BEFORE THE MAGISTRATE
In closing submissions before the magistrate, counsel for
the applicant contended that the evidence that had been placed before the court
showed that the applicant had always been available within the jurisdiction.
Furthermore, that it was known to the police that he was an active member of
the MDC-T political party who would attend his party's political rallies; that
he was a Member of Parliament who would attend Parliament at least three (3)
days a week and that he could be contacted telephonically. He submitted that if
the police had, in the circumstances, acted professionally, they could have easily
served him with summons. It was also his submission that no evidence had been
placed before the court a quo, to show that the applicant had deliberately made
efforts to ensure that he was not tried. It was for the State, as dominus
litis, he submitted, to take the necessary steps to ensure that the applicant
was tried and not for the applicant to look for the police.
RESPONDENT'S
EVIDENCE BEFORE THE MAGISTRATE
After the applicant's evidence, the State led evidence
through the Investigating Officer, one Courage Chinyerere (hereafter referred
to as 'Chinyerere'). Courage Chinyerere was not involved in the investigation
of the matter before 2009. It was only in 2009 that he was tasked to take over
as the Investigating Officer. He thus did not give evidence on any of the
events or matters that took place before he became involved in the matter. Such
events or matters were only placed before the court a quo by way of the
prosecutor's address which was made before the witness testified.
The witness' evidence was to the effect that sometime in
2009 when he was tasked to take over as the Investigating Officer of the
matter, there was an instruction on the docket for him to serve the accused
with summons for trial and to thereafter serve the witnesses with the relevant
subpoenae. He visited the address that was recorded on the docket as being the
applicant's residential address but found that he no longer resided there. On
the Officer-in-Charge's instructions, which were guided by the fact that the
applicant was a Member of Parliament, he approached the Clerk of Parliament
with a view to ascertaining the applicant's current address. It was a fruitless
visit as the Clerk of Parliament did not have it.
Chinyerere eventually obtained the applicant's mobile phone
number. He contacted the applicant, and, on the latter's suggestion, they
agreed to meet at his legal practitioner's offices. As Courage Chinyerere was
about to leave his office in order to go and meet with the applicant at the
agreed venue, the latter then indicated that he (Chinyerere) should leave the
summons with his secretary in Glen View.
Courage Chinyerere did not do so.
On 27 June 2010, Chinyerere was tasked, together with other
details, to attend and cover a Movement for Democratic Change (MDC-T) political
party rally in Epworth. At the rally, he observed that the applicant was one of
the guest speakers. At the end of the rally he approached the applicant and
advised him that he wanted to serve him with summons but did not have the
summons on him. The applicant's response was that he was at that time unable to
attend court due to his Constitutional Parliamentary Select Committee (COPAC)
duties. After the COPAC process was over Chinyerere phoned the applicant who
requested that they meet at Harvest House, the headquarters of his political
party. The applicant thereafter told him to meet with a named vendor but
Chinyerere refused to do so and advised the applicant that he needed to serve
him personally with the summons.
They then met at Harvest House where he finally served the
summons on the applicant on a date that he said he could not remember except
that it was in 2011.
SUBMISSIONS
BY THE STATE (RESPONDENT) BEFORE THE MAGISTRATE
The only submissions made by the prosecutor were by way of
an opening address to the court a quo which address was made immediately before
the leading of Courage Chinyerere in evidence. The prosecutor narrated the
events that occurred during the period before Chinyerere's involvement as Investigating
Officer of the case with particular reference to the State's efforts to bring
the matter to trial and the applicant's frustration of the same.
He summarised the history of court hearings and
postponements and stated the specific reasons why the trial did not commence on
the various given set-down dates.
The first trial date that was set for this matter was 5
March 2007. On that date, the trial could not commence as State papers had not
been served on the applicant. 7 May 2007 was then set as the new date for
trial. The applicant did not appear in court on that date and a warrant was
issued for his arrest. The next trial
date was 15 August 2007. Again, the trial did not commence on that day as the
applicant's legal practitioner of choice, Mr Muchadehama could
not attend. Thereafter, on 3 September 2007 and 23 October 2007 respectively,
the trial did not commence and the matter was postponed - apparently by
agreement of both parties. On 3 December 2007 the State was ready to proceed to
trial, all the witnesses being present, but the matter was, for some
unexplained reason, postponed to 31 January 2008.
On 31 January 2008 the applicant was removed from remand by
the magistrate.
The prosecutor highlighted the fact that after
31 January 2008, numerous attempts had been made to resuscitate the matter
by way of summons. The applicant had been contacted by the police in order for
arrangements to be made for him to be served with summons to appear for trial
on 11 March 2008 but the applicant suggested that the trial date be set for 4
April 2008 instead. Thereafter, the applicant could not be located for purposes
of service of the summons for trial on the date that he had suggested. After he
was finally located, he kept giving excuses to the police relating to his
Parliamentary, and, subsequently, Constitutional Parliamentary Select Committee
engagements and duties as reasons for not being able to avail himself for
trial.
Note may be taken at this stage that this is a trend that
appears to have continued even after Courage Chinyerere took over as Investigating
Officer of the matter, as reflected by his evidence.
The prosecutor also submitted that the applicant's mobile
phone number would frequently be unreachable when the police tried to contact
him. Efforts made to locate him in Mbare, where his music group performed, were
in vain. The police still failed to serve summons on him as they were only able
to physically locate him at public gatherings or functions and they feared that
any attempt to serve him thereat could ignite violence from members of his
political party. For these reasons, another trial date, of 14 July 2010,
failed to materialise. The police eventually decided to wait until the
applicant's direct involvement in the Constitutional Parliamentary Select
Committee had lessened. He was, after some difficulties, eventually served with
the summons, as testified to by Courage Chinyerere, at the headquarters of his
political party in January 2011 for trial on 11 January 2011.
The trial did not commence on 11 January 2011 as the
applicant was not available.
The matter was re-set down for 15 February 2011 but on that
date the applicant was attending to his Constitutional Parliamentary Select
Committee responsibilities. After 15 February 2011, the police, yet again,
faced difficulties in serving the applicant with summons for another date and
only managed to serve him on 11 April 2011 for trial on 13 April 2011. On
13 April 2011, the applicant's legal practitioner, Mr Muchadehama was not
in attendance, the defence claiming that they were not in possession of State
papers. The applicant was remanded to 17 May 2011 on which date Mr Muchadehama
gave notice that an application was going to be made for the matter to be
referred to the Supreme Court sitting as the Constitutional Court.
MAGISTRATE'S
REASONS FOR REFERRAL
The magistrate in the court a quo found that the raising of the question was not frivolous or
vexatious and stated:
“This is a ruling to an application for referral of matter
to the Supreme Court to determine whether or not accused person's right to a
trial within a reasonable time, in terms of s 18(2) of the Constitution, has
not been violated. It is this court's finding that this application is not
frivolous and vexatious considering that the offence was committed in 2006 and
accused was initially placed on remand on 29 December 2006 and further remand
was refused on 5 March 2007. Application is hereby granted and matter is hereby
referred to the Supreme Court for determination.”
THE ISSUE
FOR DETERMINATION
The issue for determination by this court is whether the
applicant's right to a trial within a reasonable time was violated, and, if so,
whether he is entitled to a permanent stay of prosecution.
APPLICANT'S
SUBMISSIONS TO THIS COURT
In heads of argument filed with this Court on the applicant's
behalf, it was submitted, in one breath, that the applicant's trial failed to
commence for reasons wholly attributable to the State. In the next breath, the
submission was that the delays in commencing the trial were almost wholly
attributable to the State. It was also submitted that the reasons advanced by Courage
Chinyerere for the failure to serve summons on the applicant were not plausible
as they were not truthful and had no sound legal basis. Furthermore, that when
the State made further attempts to serve the summons on the applicant, he made
it clear that he was going to resist being tried and was going to assert his
rights to a fair trial. It was further submitted that the applicant's rights to
personal liberty, as guaranteed in terms of section 13(1) and to protection of
the law and a fair hearing within a reasonable time by an independent and
impartial court, as guaranteed in terms of section 18(1) and (2) of the former
Constitution, were violated….,.
In his oral submissions, Mr Majuru, for the applicant,
relied on the heads of argument filed of record and also highlighted the
following:
(i) The delay of 4 years and 7 months before the State made
any serious attempts at trying the applicant;
(ii) The delay in commencing trial is presumptively
prejudicial to the applicant's rights to a fair trial within a reasonable time;
(iii) The delays that occurred were almost wholly attributable to the State.
It was Mr Majuru's submission that the State had accepted
that there was a prima facie inordinate delay in bringing the applicant to
trial. He submitted that such acceptance obviated the need for the court to
determine the first of the four factors that have been set out by case law as
being relevant in matters of this nature. The focus would thus, he submitted,
fall on the remaining three factors; the first being whether the
Attorney-General had given a reasonable explanation for the delay. He contended
that the prosecutor's decision in declining to cross examine the applicant
meant that the State accepted or agreed with everything that the applicant said
under oath in the proceedings before the magistrate and that by implication,
therefore, the State had no plausible explanation for the delay.
As to the next factor, viz, whether the applicant asserted
his right to a fair trial within a reasonable time, Mr Majuru made a bald
unsubstantiated statement that the applicant had done so.
Regarding the last factor, whether the applicant had been
prejudiced by the delay, Mr Majuru referred the court to the case of In re
Hativagone SC67-04, cited in the
respondent's heads of argument, in which the following objectives of ensuring
speedy trials are listed:
(i) To prevent oppressive pre-trial incarceration;
(ii) To minimise anxiety and concern of the accused; and
(iii) To limit the
possibility that the defence will be impaired.
Mr Majuru submitted that in casu, the most serious consideration is that the applicant's defence
will be impaired in that, due to the delay, he is no longer able to locate and
will therefore be unable to call his sole witness, Onwell Kadembo, whose
current whereabouts are now unknown to him.
RESPONDENT'S
SUBMISSIONS TO THIS COURT
Counsel for the respondent, in his address to this Court, largely highlighted the submissions
made in his written address. The submission was made that whilst the alleged
delay in casu is prima facie inordinate, the explanation for it is, in the
peculiar circumstances of the case, reasonable. It was also submitted that the
delays in the commencement of the trial that occurred during the period between
14 December 2006 and 31 January 2008 when the applicant was removed from
remand, were attributable to both the State and the applicant. It was further
submitted that after the applicant counter-proposed 4 April 2008 as a trial
date in place of 11 March 2008, the police encountered problems in locating him
for purposes of service of summons and the trend continued until he was finally
served in 2011. During this whole period the State was incapacitated from complying
with section 140 of the Criminal Procedure and Evidence Act [Chapter 9:07]
which requires service of summons to be effected:
“By delivering it to the accused personally, or, if he
cannot conveniently be found, by leaving it for him at his place of business or
most usual or last known place of abode with an inmate thereof.”
The respondent's counsel further highlighted that although
police officers were, on a number of occasions, able to communicate with the
applicant, his address for the purpose of service remained unknown to the
State. The applicant thus made it impossible for the State to effect service of
the summons on him.
The submission was also made that during the period from 31
July 2008 and 17 May 2010 the applicant never asserted his right to a speedy
trial and that he waited until the time of reckoning to do so. Furthermore,
that the State adduced evidence to the effect that, after the initial period
referred to above, it had sought to resuscitate the matter but the applicant
would shift goal posts whenever appointments were made with him by State
officials. Consequently, it was contended, the applicant could not, in such
circumstances, be heard to complain that he had been denied a speedy trial.
The respondent's counsel also submitted that the applicant
did not suffer any prejudice as he was never incarcerated but continued to
enjoy his status and all the privileges accorded to an Honourable
Parliamentarian throughout the period of the alleged delay.
FACTORS TO
BE TAKEN INTO ACCOUNT
This application requires the court to assess whether the
applicant has been deprived of his constitutional right to a speedy trial. The
factors that this Court is enjoined to consider in applications of this nature
are now settled. These are;
(i) Firstly, the length of the delay- this being, to some
extent, a triggering mechanism, for until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance.
See Barker v Wingo (1972) 407 US SCt, cited with approval
in In re Mlambo 1991 (2) ZLR 339 (S)…,.; In re Hativagone SC67-04…,.
(ii) The second factor is the reason given by the
prosecution for the delay;
(iii) The third is whether the accused person asserted his
rights; and finally
(iv) The prejudice occasioned to the accused by the delay.
See Jonathan Mutsinze v The Attorney General CC13-15; Helen
Matiashe v The Honourable Magistrate Mahwe N.O. & Anor CC12-14; In re
Hativagone SC67-04; In re Mlambo 1991 (2) ZLR 339 (S)…,; Fikilini v
Attorney-General 1990 (1) ZLR 105, 113A-H (SC).
THE LENGTH
OF THE DELAY
It appears to me the following facts are not disputed;
(i) The fact of the applicant's arrest on 14 December 2006;
(ii) His being placed on remand on 29 December 2006;
(iii) Remand being refused on 5 March 2007;
(iv The subsequent numerous abortive trial dates; and
(v) The proceedings of 20 July 2011 during which the
application for referral to this court was successfully made.
For the magistrate presiding over the matter in July 2011,
some 4 years and 7 months after the arrest of the applicant and his being
placed on remand, these facts would no doubt create an impression of a
presumptively prejudicial delay.
Delays of relatively similar lengths were found to be presumptively
prejudicial in In re Mlambo 1991 (2) ZLR 339 (S) (four (4) years and six (6)
months); In re Masendeke 1992 (2) ZLR 5 (S) (seven (7) years.); Helen Matiashe
v The Honourable Magistrate Mahwe N.O. & Anor CC12-14 (more than five (5) years).
To this extent, the magistrate's finding can thus not be
faulted.
It is settled that once it is accepted that the delay in
the prosecution of the applicant is presumptively prejudicial, it then becomes
necessary to consider the other pertinent factors in order to determine whether
his rights under section 18 were breached.
THE
EXPLANATION FOR THE DELAY
In the absence of specific reasons proffered by the
applicant for the various aborted dates, the detailed and virtually
unchallenged reasons proffered by the State for the failure of the trial to
commence on the various given dates must be taken as the true explanation
thereof.
In my view, the State has proffered a reasonable
explanation for the delay.
WHETHER THE
APPLICANT ASSERTED HIS RIGHTS
The history of the matter shows that during the period
after the applicant's arrest but before he was removed from remand, his trial
was postponed several times. The postponements were occasioned by the conduct
of both the State and the defence on the various dates. The applicant did not
dispute the evidence led by the State that after he had been removed from
remand he was contacted by the police and that it was he who counter-proposed
the trial date of 4 April 2008 in place of 11 March 2008, being the trial date
for which the police had intended to serve him with summons.
He nevertheless did not avail himself to the authorities.
The applicant was thus aware, certainly from March 2008, if
not earlier, that the police were desirous of serving him with summons in order
for his trial to commence. He kept giving excuses as to why he could not avail
himself to stand trial, citing his Parliamentary engagements as well as his Constitutional
Parliamentary Select Committee duties. He also vacated his known address
without leaving a forwarding address and his address for service thus remained
unknown. More than 3 years later, when he was eventually served with summons
and appeared before a magistrate, the applicant then raised the issue of his
right to a hearing within a reasonable time. What therefore emerges is that the
applicant made it difficult for the summons to be served on him, despite being
fully aware that the criminal charges that he was facing were not yet finalised
and that the authorities were desirous of serving him with summons and having
him tried.
In S v Mavharamu 1998 (2) ZLR 341 (H) it was stated that:
“What is emphasised in determining the cut-off point after
which a delay becomes unreasonable is the balancing test, in which the conduct
of both the prosecutor and the defendant are weighed.”
The conduct of the applicant in casu is not consistent with
an assertion of his right to trial within a reasonable time. To the contrary,
it points to a conscious or deliberate prolongation of the period of delay as
he persistently made himself unavailable for service of summons. He seems to
have adopted the attitude that perhaps the matter would simply fade into
oblivion.
I find that he was the cause of the greater part of the
unreasonable delay in the prosecution of the charges that he was facing.
PREJUDICE TO
THE APPLICANT
There is no grounded basis proffered by the applicant as to
how the applicant's defence has been impaired. An indication was made by the
applicant, in his testimony before the magistrate, for purposes of the
application for referral of this matter to this Court that he would have wished
to call Onwell Kadembo as a defence witness. He said that the said Onwell
Kadembo had since left the country and he was unable to trace him. However, the
said Onwell Kadembo was said by State counsel to be a State witness, as
reflected in the summary of the State case….,.
In the event, the claim that his defence has been impaired
cannot hold sway as the witness will be called by the State.
DISPOSITION
In casu, it is common cause that there is no pre-trial
incarceration to talk about as the applicant was never incarcerated. Regarding
anxiety and concern on the part of the applicant, it is evident from his
behaviour that the applicant was in no haste to undergo his trial. He continued
to enjoy his status and the prestige that is accorded to an Honourable
Parliamentarian throughout the period that he now complains of as being
inordinately and unreasonably long. The following was stated in S v Taenda 2000
(2) ZLR 394 (H)..,.:-
“In general, an unreasonable delay to the finalisation of
criminal proceedings causes prejudice to the accused. He suffers social
prejudice arising from doubt as to his integrity or conduct. The presumption of
innocence does not, in the eyes of the public, family and friends, continue to
operate as long as he is on remand…,.”
The applicant in casu did not suffer social prejudice.
He enjoyed the latitude of counter-suggesting trial dates
to State authorities. He would indicate that he would avail himself for service
of summons but would thereafter not honour his word to the police, thereby
prolonging the period of the delay while he went about his business as usual.
The applicant could have taken, but did not, the advantage of grasping at the
opportunity to have his day in court and clear his name. He did not, at any
stage, assert his right to a speedy trial during the period extending from 31
July 2008 to 17 May 2010. He, on the other hand, would shift goal posts in
terms of appointments with State officials for the purposes of being served
with process for the commencement of his trial. What is evident is that the
applicant waited until the day of reckoning to raise the issue of his
constitutional right to a trial within a reasonable time.
The applicant has not established any basis for this court
to grant him relief in the form of a permanent stay of prosecution.
It is for the above reasons that this Court
dismissed his application, on 28 May 2014, with no order as to costs.
