Criminal
Appeal
CHITAPI
J:
In
this appeal, the Prosecutor General pursuant to an order for leave to
appeal having been granted by a judge of this court on 19 August,
2014, noted an appeal against the acquittal of the respondent by the
Regional Magistrate Eastern Division on 26 April, 2012.
The
respondent then a 58 year old Israel national was charged on two
counts of statutory contraventions.
In
the first count the respondent was charged with a contravention of
section 3 of the of the Precious Stones Trade Act [Chapter
21:06].
It was alleged against him that on 17 March, 2012 and at Harare
International Airport, he unlawfully had in his possession 8,486.66
carats of rough diamonds whose estimated valued was $2,437,708.22.
In
the second count, the respondent was charged with a contravention of
section 12(1) of the Immigration Act, [Chapter
4:02]
which creates an offence called “entry by evasion”. It was
alleged against him that at the same place and on the same date as in
the first count, the respondent being the holder of a foreign
passport unlawfully failed to present himself to an immigration
officer and entered Zimbabwe without authority contrary to the law.
The
respondent pleaded not guilty to both counts.
In
brief outline, the facts of the matter were that, the respondent was
a pilot instructor employed by an airline domiciled and operating
from Israel. He was booked to fly on a South Africa Airlines
scheduled flight out of Zimbabwe. He had flown into Zimbabwe the same
date, that is, 17 March, 2012. His boarding pass for exiting had been
issued in South Africa at the time that he checked in to fly into
Zimbabwe. The respondent was dressed in his pilot uniform. As part of
the departure formalities for the return journey, the respondent
presented himself to an Aviation security screening point where his
hand luggage was screened. Suspected precious stones were discovered
and recovered in his luggage. These are the rough diamonds which
grounded the charge in the first count.
On
the second count, it was alleged against the respondent that on
arrival at Harare International Airport, on 17 March, 2012, he did
not present himself to an immigration officer but entered the country
as a crew member yet he had travelled as a passenger.
The
respondent denied both charges and with respect to the second count,
he alleged that he was in fact on duty and wore his uniform. He had a
valid boarding pass for Harare as with the rest of the passengers and
the crew since boarding passes are issued to everyone on board an
aircraft for accounting purposes should the plane be involved in a
mishap or accident.
With
respect to the first account the respondent averred that he was an
agent for a licensed diamond company whose licence he produced as
well as an affidavit authenticating the agency relationship. The
respondent averred further that he was a transit passenger en route
to Israel and that the diamonds for which he produced documents of
origin did not originate from Zimbabwe but from South Africa.
The
Regional Magistrate after a full trial acquitted the respondent on
both counts.
In
response to the grounds of appeal filed by the appellant, the
magistrate supported his decision to acquit the accused on the basis
that the State had consented to the production of the permit or
licence to possess diamonds which the respondent produced. The
magistrate held that on the evidence adduced by the State, the
respondent fell into the group of persons who could lawfully deal in
or possess diamonds in terms of the Precious Stones Trade Act and
that the respondent was a transit passenger. There was no evidence
that the origin of the diamonds was Zimbabwe. In respect of the
second count, the magistrate held that the State did not lead any
evidence as to what it alleged the accused had done in relation to
the alleged failure to complete immigration formalities. At best the
State had only led evidence of a generalized nature from a witness
regarding procedures to be followed by a person who wishes to enter
Zimbabwe.
The
above extrapolation briefly sets out what the case against the
respondent was all about.
At
the hearing on 23 February 2017, the State prosecutor gave notice
that he intended to abandon and withdraw the appeal. He requested for
the matter to postponed to 9 March 2017 so that he would prepare and
file the necessary papers to give effect to the State's withdrawal.
On
8 March 2017, the State prosecutor filed supplementary heads of
argument in support of the State's decision to withdraw its appeal.
Both the prosecutor and the respondent's counsel made brief
submissions in relation to the withdrawal.
The
question which exercised the mind of the court was, whether or not
the Prosecutor General as appellant could just abandon and withdraw
the appeal in circumstances where the court was seized with the
appeal. Put differently, the question which arose for consideration
was whether or not the court could if it had reservations with the
reasons given for the withdrawal of the appeal, refuse to grant an
order of withdrawal and direct that the appeal be argued on the
merits.
A
consideration of various pieces of legislation will help inform the
decision of the court in regard to answering the question arising.
Section
258 of the Constitution 2013 provides as follows:
“258
Establishment
and Functions of National Prosecuting Authority”
There
is a National Prosecuting Authority which is responsible for
instituting and undertaking criminal prosecutions on behalf of the
State and discharging any functions that are necessary or incidental
to such prosecutions.”
Section
260 of the Constitution provides as follows;
“260
Independence
of Prosecutor–General
(1)
Subject to this Constitution, the Prosecutor General -
(a)
Is independent and is not subject to the direction or control of
anyone; and
(b)
Must exercise his or her functions impartially without fear, favour,
prejudice or bias.”
Section
12 of the National Prosecuting Authority Act, [Chapter
7:20]
provides as follows:
“12
Power to institute and conduct criminal proceedings
(1)
The Prosecutor General –
(a)
shall institute and conduct criminal proceedings on behalf of the
State; and
(b)
shall carry out any necessary functions incidental to instituting and
conducting such criminal proceedings; and
(c)
may discontinue criminal proceedings; and
(d)
shall issue certificates nolle
prosequi in
accordance with the Criminal Procedure and Evidence Act [Chapter
9:07],
to persons intending to institute private prosecutions, where the
Prosecutor-General chooses not to prosecutor; and
(1)
The Prosecutor-General may assign any duty referred to in subsection
(1) to the National Director of Public Prosecutions, subject to the
control and directions of the Prosecutor-General.
(2)
Subject to the Constitution and this Act, a member shall, subject to
the control and direction of the Prosecutor-General, exercise the
powers referred to in subsection (1), in respect of –
(a)
the area of jurisdiction for which he or she has been appointed; and
(b)
any offences which have not been expressly excluded from his or her
jurisdiction, either generally or in a specific case, buy the
Prosecutor-General.
(3)
A member shall be competent to exercise any of the powers referred to
in subsection (1), to the extent that he or she has been authorised
thereto in writing by the Prosecutor-General, or by a person
designated by the Prosecutor-General.”
The
cited constitutional and statutory provisions speak to the powers and
authority of the Prosecutor General in relation to conducting
prosecutions of criminal cases on behalf of the State. Both on trial
of an accused person and on appeal as in this case the Prosecutor
General exercises the functions of prosecuting on behalf of the State
as envisaged in section 258 of the Constitution.
In
the absence of legislation to the contrary, the powers of the
Prosecutor–General to undertake a prosecution also implies the
power to stop a prosecution and a fortiori
to withdraw a prosecution
brought by the Prosecutor General.
In
the matter
Highstead
Entertainment
(Pty) Ltd
t/a “The
Club”
v Minister
of Law and Order and Others.
1994 (10) SA 387 (C) the court held that the discretion to decide
whether to proceed with a prosecution or to withdrew it is one of the
fundamental functions in exercising a duty to prosecute.
Section
260 of the Constitution provides for the independence of the office
of the Prosecutor General in the discharge of prosecutorial
functions.
The
Prosecutor-General “is not subject to the direction or control of
anyone” in regard to discharging prosecutorial functions. It
follows that a court has no power to order the Prosecutor General to
mount a prosecution or how to conduct criminal proceedings, save
perhaps to the extent that once the Prosecutor General decides to
prosecute, such prosecution should then be conducted in terms of the
procedural rules obtaining in the court in which the case is listed
for determination.
In
R
v Comptroller-General
of Patents
(1899) IQB 909 at 914, in extrapolating on the independence of the
Attorney General (equivalent of the Prosecutor General in this
jurisdiction); the court held that when the Attorney General in
exercising his functions as an officer of the Crown, such functions
were not subject to review by the court of the Queens bench or any
other court.
The
Zimbabwe Constitution, 2013 whilst entrenching the independence of
the Prosecutor General has provided in section 260(1)(b) safeguards
which the Prosecutor General must have regard to when exercising his
or her powers in terms of section 258 and 260(1)(a) of the
Constitution. What this entails is that, where an aggrieved person
complains of an infraction of his or her fundamental rights and can
prove successfully that the Prosecutor-General has failed to have
regard to the safeguards listed in section 260(1)(b), the court in
the exercise of its wide powers of review may enquire into such a
complaint and grant an appropriate remedy.
The
court cannot however mero
motu review
the powers or decisions of the Prosecutor General made in the
discharge of his or her prosecutorial functions.
There
must be a complaint of an infraction of someone's rights having
been violated revised in this appeal. The complaint triggers an
enqiry and review of the Prosecutor General's discharge of his
functions.
In
casu, no such complaint has been raised against the Prosecutor
General's actions or decisions. That being, the decision to
withdraw the appeal is a matter peculiarly within the Prosecutor-
General's discretion and however he or she has arrived at such
decision is his or her responsibility.
It
is to be noted that the Prosecutor-General in deciding to prosecutor,
stop a prosecution or withdraw it, does so taking into account the
public interest, the interests of justice and the need to avoid an
abuse of the court process. A lot of factors come into play when the
Prosecutor General decides whether or not to prosecute or indeed to
withdraw a prosecution. Some of the factors may not be in the public
interest to disclose.
In
my judgment, the courts, save where the is a complaint by an affected
or interested party must not interfere with the exercise of the
prosecutorial functions of the Prosecutor General. The Prosecutor
General should not be subjected to any pressure either by the
Executive or by the courts in the proper exercise or discharge of his
functions regarding prosecutions.
Indeed,
where an affected party petitions the court that the Prosecutor
General in the exercise of his or her functions has broken the law,
the court will issue an appropriate remedy.
An
example of such an instance in this jurisdiction related to the
refusal by the Prosecutor General (then Attorney General) to issue
the complainant whose case he had refused to prosecuted with a
certificate “nulle
prosequi”.
The certificate would have enabled the complainant to conduct a
private prosecution against the person whom the complaint alleged to
have committed a criminal offence from which the complainant suffered
harm (see Prosecutor
General
v Telecel
Zimbabwe (Pvt) Ltd
SC 1/2014; 2015 ZWCC 10; CCZ 10/15.
This
was topical case.
A
reading of the High Court, Supreme Court and Constitutional Court
judgments will show that the courts did not interfere with the
Prosecutor General's decision to decline a prosecution. The courts
simply ordered him to take the statutory step as required of him to
issue a certificate nulle
prosequi
in terms of the Criminal Procedure and Evidence Act, [Chapter
9:07]
at the instance or request of the complainant.
To
conclude this judgment, I must point out that whilst the Prosecutor
General's right of appeal to this court in relation to criminal
appeals derives from sections 61 and 62 of the Magistrates Court Act
which suffers the Prosecutor General to first obtain leave of a judge
to appeal, there is nothing which stops him from subsequently
throwing in the towel and withdrawing the appeal. The withdrawal of
an appeal in respect of a matter brought by that party on appeal is a
unilateral act which the court cannot stop nor review. It must follow
that once the appellant has withdrawn an appeal the court cannot
continue to deal with the matter. The court must endorse the
withdrawal.
There
was therefore no need in this matter for Mr Nyazamba to file
arguments or convince the court of the reasons nor their reasonabless
for the Prosecutor General's decision to withdraw the appeal. It
was the appellant's prerogative to withdraw the appeal.
Consequently
the following order shall issue.
1.
That the appeal by the Prosecutor General in case No. CRB R 263/12 is
hereby withdrawn by the Prosecutor General as appellant.
2.
The judgment of the Regional Magistrate dated 25 April 2012 in the
aforesaid case shall remain extant.
Mushore
J
agrees ……………………….
National
Prosecuting Authority,
appellant's legal practitioners
Venturas
& Samkange,
respondent's legal practitioners
