The
applicant is the National Prosecuting Authority duly established as
such in terms of section 258 of the Constitution.
It
is responsible for instituting and undertaking criminal prosecutions
on behalf of the State.
The
third to fifth respondents are directors in the second respondent,
Navister Insurance Brokers (Pvt) Ltd, with whom they were jointly
charged of fraud as defined in section 136 of the Criminal Law
(Codification and Reform Act) [Chapter:9:23]
before the first respondent, the Regional Magistrate for the Eastern
Region.
In
the alternative, they were charged with theft as defined in section
133 of the Criminal Law (Codification and Reform Act) [Chapter:
9:23].
They are alleged to have prejudiced the complainant, Air Zimbabwe, of
substantial amounts of money acting in consort and common purpose in
the course of duty as Navister directors.
The
four respondents applied for discharge at the close of the State case
in terms of section 198(3) of the Criminal Procedure and Evidence Act
[Chapter.
9:07]
which provides that:
“(3)
If at the close of the 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.”
Before
the trial magistrate had delivered judgment it was drawn to his
attention that a provisional and final orders had been issued by the
High Court, under case number HC5607/14, placing the second
respondent under judicial management. The relevant paragraph, 1(e),
of MTSHIYA J's order, dated 10 September 2014, reads:
“All
actions and applications and executions of all writs, summons and
other process against the Applicant shall be stayed and not proceed
without leave of this Honourable Court.”
The
first respondent interpreted the above order to mean that the second
respondent could not be legally prosecuted in any court without the
leave of the High Court. In his ruling, this is what he had to say:
“The
settled position is that once a corporate entity is placed under
judicial
management
or under liquidation no legal proceedings should commence or proceed
without leave of the High Court. This then means this trial against
Accused One cannot proceed without leave of the High Court. The State
is not prepared to separate Accused One from Accused 1, 2, 3 and 4
and what this means is that the trial cannot proceed till the State
(has) obtained leave from the High Court.”
At
that juncture, the State applied for a longer postponement to enable
it to apply, in the interim, for leave to prosecute the second
respondent. The State then decided to stall the entire proceedings
indefinitely by refusing to separate trials so as to proceed against
the third to fifth respondents to whom MTSHIYA J's order did not
apply. The application was opposed. The defence countered that an
indefinite postponement would prejudice the accused. They then moved
for removal from remand arguing that when the State is ready they can
always be summoned to court for continuation of trial.
The
first respondent ruled in favour of the defence saying:
“All
four accused persons are hereby removed from remand. The State will
proceed by way of summons and the application by the State for a
longer remand is hereby dismissed.”
Aggrieved
by the above rulings, the State launched this urgent chamber
application challenging the correctness of the rulings made by the
first respondent. In that application it sought a provisional order
couched in the same terms as the final order sought. It is needless
to say that this is undesirable but I shall not dwell on that as the
application does not fall to be determined on that aspect at this
stage. The provisional order sought is couched in the following
terms:
“IT
IS HEREBY ORDERED THAT:
1.
The Order granted on 10 September 2014, in case number HC5607/14,
does not have the effect of terminating criminal prosecution of the
2nd
Respondent.
2.
The 2nd,
3rd,
4th
and 5th
Respondents be and are hereby ordered, upon service of this order, to
appear before the 1st
Respondent for continuation of trial there pending on the same bail
conditions that existed before their removal from remand.”
Urgency
was premised on the argument that the removal of the accused persons
from remand would compromise the ends of justice.
With
due respect, this is clearly self-created urgency which the courts
have said, time without number, does not qualify to have a matter
treated as urgent. It is trite that a matter is not urgent where the
applicant has an alternative remedy to avert the envisaged harm,
damage or prejudice.
In
this case, it is abundantly clear that the applicant has an option to
separate trials and continue with the trial of the natural persons
whom it fears might flee from justice. Surely, the applicant cannot
plead urgency in circumstances where it is prepared to wait
indefinitely until it has sorted out its legal problems with one
accused person when in the interim it can proceed with the other
accused persons.
The
trial magistrate's ruling, releasing the accused from remand while
the applicant is putting its house in order is salutary as the
determination promotes the right to personal liberty enshrined in
section 49 of the Constitution without compromising the ends of
justice because the respondents can always be summoned to Court when
the State is ready to continue with the trial.
That
being the case, I come to the conclusion that the matter is not
urgent. At this stage, I do not wish to embroil myself in the legal
controversy concerning the validity or otherwise of a certificate of
urgency signed by a litigant's legal practitioner or one from the
same firm. The bottom line is that this matter is not urgent.
