MAWADZE
J: This is an application for leave to appeal against the first
respondent's acquittal by the second respondent at the close of the
state case.
The
applicant is the Prosecutor General of Zimbabwe.
The
first respondent is a well-known legal practitioner.
The
second respondent is a magistrate employed by the Judicial Service
Commission and is based at Harare Magistrates Court. The second
respondent is cited nominus
officiae.
The
first respondent was arraigned before the second respondent facing a
charge of contravening s 184 (1) (g) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23]
which relates to defeating or obstructing the course of justice by
resisting, hindering or disturbing a police officer in the execution
of his or her duties knowing that the police officer is a police
officer exercising or executing his or her duties or realising that
there is a real risk or possibility that the police officer may be a
police officer executing his or her duties. The penalty provision for
contravening s 184 (1) (g) of the Criminal Code [Chapter
9:23]
is a fine not exceeding level seven or imprisonment not exceeding two
years or both.
The
first respondent was arrested on 17 March 2013 and granted bail
pending trial by this court on 25 March 2013. She was then arraigned
before the second respondent on 10 June 2013 and acquitted on 26
November 2013.
The
charge preferred against the first respondent is that on 17 March
2013 at Number 2023, Area D, Westgate, Harare the first respondent
well knowing that Chief Superintendent Luckson Mukazhi, Detective
Assistant Inspector Wilfred Chibage and Detective Constable Ngatirwe
Mamiza were police officers in the execution of their duties carrying
out searches at the said premises as well as Number 14 Bath road
Belgravia Harare as per the search warrant unlawfully disturbed,
resisted or hindered the said police officers by shouting the
following words;
“Stop
whatever you are doing, its unconstitutional, illegal, undemocratic.
You are confused cockroaches. You are Mugabe's dogs” in order to
refrain them from conducting the search and that she proceeded to
take photographs and or videos threatening to send such photographs
or videos to the international media. It is also alleged that the
first respondent closed the gate at Number 2023, Area D, Westgate
Harare in order to prevent the said police officers from leaving the
premises with some recovered documents and that this delayed the
search at Number 14 Bath road Belgravia resulting in the removal of
four central processing units and 3 computer monitors from the said
premises which the police wanted to recover.
A
summary of the allegations against the first respondent are as
follows;
On
17 March 2013 police officers were at Number 2023, Area D, Westgate,
Harare owned by Tabani Mpofu armed with a search warrant to search
the premises. The police officers were investigating a case of
possessiong articles for criminal use as defined in s 40 of the
Criminal Code [Chapter
9:23].
It is alleged that the police officers after searching the house
proceeded to search Tabani Mpofu's five motor vehicles in the yard
and that the first respondent arrived.
The
first respondent is said to have uttered the words referred to
earlier on without identifying herself and that a result the police
officers stopped the search and proceeded to show the first
respondent the search warrant. Instead the first respondent is said
to have proceeded to take photographs or videos using her cellphone
and thus hindered or disturbed the police officers in carrying out
their duties moreso as this caused a number of people to gather at
the scene. It is further alleged that the first respondent closed the
gate at the premises in order to stop Detective Assistant inspector
Chibage from leaving the premises with some recovered documents. At
that stage Chief Supritendent Mukazhi proceeded to arrest the first
respondent and tried to take her cellphone but the first respondent
hid it in her bra, and proceeded to delete the photographs and videos
after which she handed over the cellphone. It is also alleged that
the police officers were delayed to proceed to Number 14 Bath road
Belgravia, Harare where they wanted to conduct another search and
that the first respondent who was now under arrest threatened to
urinate or defecate in the police motor vehicle. The state alleges
that this delay caused the removal of some computers at No 14 bath
road Belgravia Harare.
The
first respondent pleaded not guilty to the charge.
In
her defence outline the first respondent pointed out that both the
charge sheet and the state outline disclose no offence. In fact that
the first respondent said that she is the wronged party as she was
arrested during the course and scope of her duties as a legal
practitioner. The first respondent berated the police officers for
failing to hand over or show her the search warrant. She further
denied uttering the words alleged and pointed out that even if she
had uttered such alleged words that would not constitute an offence.
In fact the first respondent said the alleged words were never put to
her in her warned and cautioned statement and that this is simply an
after-thought on the part of the police.
The
first respondent's version of events as per her defence outline is
that she received a distress text message from Tabani Mpofu and that
Tabani Mpofu's relative led her to the said premises in Westgate.
Upon her arrival she said the police had completed the search and
that no search warrant was shown to Tabani Mpofu hence she asked one
of the police officers leaving the premises with a big bag to show
her the search warrant but the police officer said he would avail it
at the Police Station together with the inventory of items seized. At
that stage the first respondent said one of the police officers
started to reverse Tabani Mpofu's motor vehicle and the other
police officer falsely alleged that she was taking photographs or
videos and demanded that she hands over her cellphone but she refused
and put her cellphone in her hand bag as the police officer tried to
forcefully take it.
The
first respondent said it is at that stage that she was told that she
under arrest and was lodged at the back of the police truck after
which she was driven to Number 14 bath road, Belgravia where she
still remained in the police motor vehicle when another group of
police officers arrived. The first respondent said it is at that
stage that she was hand cuffed and her handbag was forcibly searched.
She was later taken to the Police Station and that both the search
warrant and the said inventory were not shown to her.
The
first respondent pointed out that she is not a Shona speaking person
hence the words attributed to her are false and were not even part of
the Request For Remand Form 242.
The
first respondent stated that her arrest and subsequent prosecution is
purely malicious because after her arrest the police decided to
interrogate other matters irrelevant to this case by visiting the
High Court to check her registration papers and visiting her former
husband. The first respondent said her service provider would show
that no photographs or video footage was taken using her cellphone.
She said she would call Tabani Mpofu, his wife and one Alex Magaisa
the relative who took her to Tabani Mpofu's residence. All in all
the first respondent denies hindering police in their work. She
reiterated that when she got to Tabani Mpofu's residence the police
had completed the search. The first respondent is of the view that it
is in fact the police who hindered her form carrying out her duties
as legal practitioner.
The
state led evidence from three witnesses who are Chief Superintendent
Mukazhi, Detective Assistant Inspector Chibage and Detective
Constable Ngatirwe Mamiza.
At
the close of the state case the first respondent successfully applied
for her discharge in terms of s 193 (3) of the Criminal Procedure and
Evidence Act [Chapter
9:07].
It is this decision by the second respondent which has irked the
applicant hence this application for leave to appeal.
In
the proposed grounds of appeal the applicant insists that the
evidence led by the state shows that the respondent closed the gate
of Tabani Mpofu's residence thus hindering and disturbing the
police from taking exhibits. The applicant also insists that the
evidence led by the state shows that the first respondent uttered the
alleged words and that the uttered words indeed hindered and
disturbed the police in the execution of their duties.
The
first respondent has raised three points in limine
which I need to deal with before I even address the merits of this
application.
The
three points in limine
are as follows;
-
That
there is no proper application before this court as the applicant
has brought this application for leave to appeal in terms of s 61 of
the Magistrates Court Act [Chapter
7:10]
instead of s 198 (4) of the Criminal Procedure and Evidence Act
[Chapter
9:07].
-
That
this application for leave to appeal is invalid as the founding
affidavit by one Mr Mapfuwa is irregular and was improperly
commissioned by an officer of the Zimbabwe Republic Police (ZRP) an
institution that has a substantial interest in this matter.
-
That
there has been an inordinate and unexplained delay in mounting this
application for leave to appeal thus warranting its dismissal with
costs on a higher scale.
I
now deal with the three points in limine
seratium.
-
Citation
of s 61 of the Magistrates Court Act [Chapter
7:10]
instead of s 198 (4) of the Criminal Procedure and Evidence Act
[Chapter
9:07].
Mr
Makoto
for the applicant in his submissions conceded that the applicant
should have sought leave to appeal in terms of s 198 (4) of the
Criminal Procedure and Evidence Act [Chapter
9:07]
instead of s 61 of the Magistrates Court Act [Chapter
7:10].
The provisions of s 198 (3) and s 198 (4) of the Criminal Procedure
and Evidence Act [Chapter
9:07]
are as follows;
“198 (3) If at the close of the
state case for the prosecution the court considers that there is no
evidence that the accused committed the offence charged in the
indictment, summons or charge, or any other offence of which he might
be convicted thereon, it shall return a verdict of not guilty.
(4) If the Attorney General
(read Prosecutor General) is dissatisfied with a decision –
-
------------------
-
of a magistrate in terms of
subsection (3) he may with
the leave of a judge of the High Court,
appeal against the decision to the High Court.” (Underlining is my
own).
The provisions of s 198 (3)
and s 198 (4) of the Criminal Procedure and Evidence Act [Chapter
9:07]
have been interpreted in a number of cases. See Attorney
General
v Bennet
2011
(1) ZLR 369 (5); Attorney
General
v Bvuma
& Anor
1998 (2) ZLR 96 (S); Attorney
General
v Tarwirei
1997 (1) ZLR 575 (s); Attorney
General
v
Mzizi
1991 (2) ZLR 321.
The
provisions of s 61 of the Magistrates Court Act [Chapter
7:10]
are as follows;
“61 Prosecutor General may
appeal to High Court on a point of law or against acquittal.
If the Prosecutor General is
dissatisfied with the judgment of a Court in a criminal matter- –
-
upon a point of law; or
-
because it has acquitted or
quashed the conviction of any person who was the accused in the case
on a view of the facts which could not reasonably be entertained;
he may, with the leave of a
judge of the High Court appeal to the High Court against that
judgment.”
Mr
Makoto
in my view correctly conceded that an application for leave to appeal
in terms of s 61 of the Magistrates Court Act [Chapter
7:10]
relates to a judgment which envisages a situation where all the
proceedings are terminated or a full trial has been completed rather
than a discharge at the close of the state case. Mr Makoto
however submitted that this error by the applicant is not fatal to
this application for basically two reasons.
The
first reason advanced by Mr Makoto
is that the standard of proof or the applicable principles to be
considered in relation to s 198 (4) of the Criminal Procedure and
Evidence Act [Chapter
9:07]
are the same as those applicable in terms of s 61 of the Magistrates
Court Act [Chapter
7:10].
The second reason in his view is that the citation of the wrong
provision of the law is not prejudicial to the first respondent.
I
do not share the same views with Mt Makoto.
There is a clear legal distinction between a 61 of the Magistrates
Court Act [Chapter
7:10]
and s 198 (4) of the Criminal Procedure and Evidence Act [Chapter
9:07].
This is precisely why the first respondent in her opposing papers
raised this objection. The applicant in its wisdom or lack thereof
did not seek to amend their papers or at least to make such an
application at the commencement of the hearing of the application.
In
my view the use or citation of the wrong provision by the Prosecutor
General who is expected to be well informed in terms of the law is
not an issue which can simply be overlooked by this court or wished
away. It is clear that s 61 of the Magistrates Court Act [Chapter
7:10]
arises at the conclusion of the trial whereas s 198 (4) of Criminal
Procedure and Evidence Act [Chapter
9:07]
applies during the course of the trial at the close of the state
case.
I
am surprised that despite this concession by the applicant there was
no attempt by the applicant to seek condonation. The attitude by the
applicant seems to be that I should grant such condonation mero
muto.
However such a glaring failure by the applicant to cite the correct
provision of the law cannot be said to inconsequential or condoned
mero
muto.
The first respondent is entitled to know in terms of which provision
the applicant has applied for leave to appeal as this will inform her
response. As already said no application for condonation has been
made. I therefore find merit in the first respondent's protestation
in this regard and would uphold the point in limine.
-
Alleged
Impropriety as Regards Mr Mapfuwa's Founding Affidavit
The
first respondent has raised two objections in relation to Mr
Mapfuwa's founding affidavit which I now proceed to deal with.
-
The
first respondent contends that it was legally improper for Mr
Mapfuwa to have his founding affidavit commissioned by an officer of
the ZRP as the police institution has a substantial interest in this
matter. Reliance was placed on the case of Chafanza
v Edgars
Stores Ltd & Anor 2005
(1) ZLR 299 (H) at 300 F in which Cheda J quoted with approval
Jennet JP's remarks in R
v Rolomane
1971
(4) SA 100 E at 101-102 to the effect that;
“No doubt the courts require
for the admissibility of affidavits tendered in evidence that they be
attested by a commissioner of oaths who is impartial and independent
in relation to the subject matter of those affidavits.”
The
first respondent takes issue that Mr Mapfuwa's founding affidavit
was commissioned by police officer who is part of an institution
which arrested and interrogated the first respondent.
While
I agree in toto
with the legal principle raised by the first respondent in relation
to this issue, I am not persuaded that it is applicable to the facts
of this case. I find no impropriety in Mr Mapfuwa's founding
affidavit in this case being commissioned by a member of the ZRP. I
take judicial notice that there is a clear distinction between the
Prosecutor General's office and the ZRP. It would be far-fetched to
allege that the Commissioner of Oaths in the circumstances of this
case is impartial and biased. I clearly find no merit in this
argument.
b) The
second print raised by the first respondent relates to the
requirements of r 227 (4) (a) of the High Court Rules 1971 which
provides that;
“4 An
affidavit filed with a written application …………..
-
shall be made by the applicant
or respondent, as the case may be or by a person who can swear to
the facts or averments set out therein”
While
it is correct that Mr Mapfuwa who deposed to the founding affidavit
was not the trial prosecutor and that Mr Zvekare and Mr Mugabe were
the trial prosecutors, the fact remains that Mr Mapfuwa is a law
officer attached to the appeals section of the Prosecutor General's
Office. It goes without saying that in order to prepare this
application Mr Mapfuwa had to peruse the record of proceedings in
order to make an informed decision on whether to seek leave to appeal
or not. Mr Mapfuwa to that extent has full knowledge of the facts
pertaining to the application and his authority to depose to the
founding affidavit cannot be imputed. The criticism made by the first
respondent however is well founded that Mr Mapfuwa improperly
commented in his founding affidavit on the demeanour of state
witnesses. This is something Mr Mapfuwa could not have possibly
gleaned from the transcript of the record of proceedings and to that
extent he clearly perjured himself. The demeanour of state witnesses
could only have been observed by the trial prosecutors. Mr Makoto
to his credit made this concession.
My
finding is that Mr Mapfuwa can swear positively to the facts of this
case as a law officer who perused the record of proceedings and that
the failure to have the trial prosecutors swearing to the founding
affidavit cannot defeat the application. While the criticism made by
the first respondent as regards some of the comments made by Mr
Mapfuwa can be deemed to be fair criticism it is not in my view fatal
to this application. I am therefore inclined to make the finding that
the deposition of the founding affidavit by Mr Mapfuwa does not
invalidates this application and therefore dismiss this preliminary
issue.
3.
Delay in Bringing This Application
The
first respondent was acquitted by the trial court on 26 November 2013
and it is common cause that full reasons for the acquittal were
availed to all the parties concerned on the same day.
The
applicant filed this application for leave to appeal on 29 April 2014
after a period in excess of 5 months. According to Mr Makoto
the full transcript of record of proceedings became available on 27
February 2014. Thereafter it took the applicant two months to file
this application.
The
first respondent contends that there has been an in ordinate and
unexplained delay in bringing this application and that this is
prejudicial to the first respondent. The first respondent submitted
that this conduct by the applicant ought to be admonished by an order
of dismissal of the application with costs on a higher scale.
It
is not in issue that there is no time limit prescribed in s 198 (4)
of the Criminal Procedure and Evidence Act [Chapter
9:07]
within which an application to seek leave to appeal should be made by
the Prosecutor General. It is however, trite that such an application
should be made within a reasonable time or period. See Attorney
General v
Lafleur & Anor
1998 (1) ZLR 520 (H), Attorney
General v
Bvuma & Anor
supra.
In
my view the overriding reason for this principle is the need for
finality in litigation and to ensure that the interests of justice
are safe guarded.
The
right to a fair hearing is enshrined in s 69 of our Constitution and
this court has the utter most duty to protect that right. It is
couched as follows;
“69. Right
to a fair hearing
-
Every person accused of an
offence has a right to a fair and public trial within
a reasonable
time before an
independent and impartial court.
-
In the determination of civil
rights and obligations, every person has a right to a fair, speedy
and public hearing within
a reasonable time
before an independent and impartial court, tribunal or other forum
established by law”
(emphasis is my own)
In
my view what constitutes reasonable time is a matter of fact and
depends on the circumstances of each case.
Mr
Mapfuwa in his answering affidavit conceded that there was indeed a
delay in
bringing
this application but attributes this delay to the need to have the
record of proceedings transcribed. He said this is not a process
directly controlled by the applicant. In his submissions Mr Makoto
said he had no explanation to make as to why after the transcript of
the record was availed on 27 February 2014, it took the applicant two
months to file this application on 29 April 2014.
There
is no meaningful explanation by the applicant for the delay in making
this application other than to try and blame those responsible for
the transcription of the record. This is difficult to appreciate in
view of the fact that the reasons for the discharge of the first
respondent at the close of the state case were availed immediately to
the two trial prosecutors.
I
have no doubt in my mind that the time taken to approach this court
is in ordinate and that there was great need for the applicant to
fully explain this delay of 5 months in view of the facts of this
case. While I appreciate that there is not time frame in the relevant
provision to bring this application it should be noted that this is
not a blank cheque availed to the Prosecutor General to bring such an
application at any time.
I
wish to clearly point out that such a delay should always be
juxtaposed with the rights of an accused person who would have been
acquitted by a competent court. Such an accused person would have
gone home to celebrate with family and friends only to be told and
advised some odd 5 months later that the celebration is premature and
that the battle has just began. The inference one can therefore draw
is that such conduct ceases to be prosecution but persecution as such
delay is not only unreasonable and prejudicial to an accused person
but flies in the face of the provisions of s 69 of the constitution.
I
have no doubt in my mind after considering the facts of this case
that it should be made abundantly clear to the Prosecutor General
that the Prosecutor General is not at liberty to come to this court
any time the Prosecutor General so wishes and seek leave to appeal.
Such conduct should be frowned upon by this court and ought to be
admonished without any hesitation by dismissing such an application
for leave to appeal.
It
is therefore my finding that there has been an inordinate and
unexplained delay in bringing this application. I would therefore
uphold the point in
limine
taken by the first respondent.
Since
I have upheld two of the three points in
limine
raised by the first respondent it is now unnecessary for me to go
into the merits of this application.
I
am not persuaded that this is a proper case for which I should award
costs against the applicant on a higher scale.
Accordingly,
it is ordered that;
The
application for leave to appeal be and is hereby dismissed with
costs.
National
Prosecuting Authority,
applicant's legal practitioner
Mtetwa
& Nyambirai Incorporating Wilmot and Bennet,
legal practitioners, 1st
respondent's legal practitioners
