Urgent
Chamber Application
MATHONSI
J:
If
it had not been that it goes to the very root of the Declaration of
Rights contained in Chapter
4
of the Constitution of Zimbabwe, in particular the right of every
person to choose and be represented by a legal practitioner of their
choice before any court of law, tribunal or forum, it would have been
comic indeed.
On
17 July 2015 at about midday, a commuter omnibus was making its way
to Guruve along Mvurwi-Kanyemba road after allegedly picking up a
passenger at an undesignated zone, when the applicant, a Municipal
Police Officer at Mvurwi Town Council, pounced.
He
allegedly emerged from the tall grass wielding some spikes which he
threw in front of the moving commuter omnibus.
Sensing
danger as the spikes no doubt would have slit his tyres into
smithereens, the driver is said to have swerved but lost control of
the vehicle which overturned and was extensively damaged.
For
his troubles, the Municipal Police Officer was charged with
contravening a section of the Road Traffic Act [Chapter
13:11]
and enlisted the services of Charles Warara, a legal practitioner, to
conduct his defence.
After
a false start, the trial was set to commence on 18 August 2015 before
the first respondent sitting at Guruve Magistrates' court. Warara
could not attend court for some reason or the other but sent his
associate Raymond Wenyeve, to appear in court and apply for a
postponement to enable the accused person's lawyer to attend.
The
magistrate would have none of it.
Although
Wenyeve had been recalled from leave to do the honours and had no
prior knowledge of the case, the first respondent dismissed the
application for a postponement and directed that the trial commence
immediately.
He
would not hear of a referral of the matter to the constitutional
court on the ground that the applicant's right to a fair trial and
to be represented by a legal practitioner of his choice was being
violated.
And
commence the trial did even under those circumstances and at the end
of the day it was remanded to 25 August 2015 for continuation of
trial, a date unilaterally set by the first respondent.
As
it turns out the lead counsel for the accused person, Warara, could
not attend court on that date as well forcing the unfortunate Wenyeve
to retrace his steps back to Guruve magistrates court.
Once
at that court, the ubiquitous Wenyeve launched another bid to have
the matter referred to the constitutional court on the basis of a
violation of the accused person's fundamental right to a fair trial
and denial of legal presentation of his own choice. He also made an
application for the first respondent to recuse himself on suspicion
of bias.
While
making his application, he must have made remarks which infuriated
the magistrate, who not only dismissed the application, but also
ordered his immediate arrest for contempt of court even as the legal
practitioner was busy addressing the court.
Wenyeve
was handcuffed by a prison officer and detained until his release at
lunch time. Now that is some piece of work by any standards.
The
conduct of the judicial officer brings to contention the remarks of
Fali Nariman: Judges'
Are They Like Emperors,
where he said:
“That
Judges must have modesty and humility, that they must know their
limits and that they must not behave like emperors is sound advice”.
The
learned author concluded in that article by saying:
“No,
we don't need judges who behave like emperors. What we do need are
those; whom the lust of office does not kill; whom the spoils of
office cannot buy; who possess opinions and a will; who have honour,
and will not lie…., who live above the fog in public duty and in
private thinking”.
A
judicial officer must create an environment in his court which is not
only conducive to fairness, fair trial and justice, but also be seen
to be upholding the rights of accused persons. In his court, justice
must not only be done, it must also be seen to be done.
Where
legal practitioners performing their duties of representing accused
persons in court, no matter how tenacious they are in the pursuit of
their client's rights, are arrested while sheltering under court
privilege, then all pretensions at fairness are thrown out through
the window. In fact, the whole process of the administration of
justice is turned into a mockery and in its place is substituted the
law of the jungle, that only might prevails.
A
judicial officer must always guard against the excesses of power,
against the abuse of judicial authority to settle personal scores.
Ms
Fero,
who appeared for the second respondent, submitted that she had indeed
confirmed with the public prosecutor handling the criminal trial that
the first respondent had ordered the arrest of a legal practitioner
representing his client in a court of law. She was also of the view
that it was the first of its kind, rendering her powerless to even
begin to oppose the application.
As
far back as 1859, John Stuart Mill had made the point in his book, On
Liberty
that:
“The
sole end for which mankind are warranted, individually or
collectively in interfering with the liberty of action of any of
their number, is self-protection (……..) the only purpose for
which power can be rightfully exercised over any member of a
civilised community against his will, is to prevent harm to others”.
We
live in a tolerant society that recognises the constitutional right
of accused persons to be represented by counsel of their choice in
defence of criminal charges.
There
should never come a time when the business of representing others
becomes a hazardous exercise because a legal practitioner may be
dragged away from the bar kicking and screaming while conducting a
defence at the whim of a judicial officer.
We
must be able to draw the line somewhere and say: this cannot be done?
This
case also brings into the fore the offence of contempt of court. It
is sometimes referred to as “scandalising the court” or
“murmuring judges”.
Given
its parentage in the 18th
Century, it is unsurprising that this form of contempt tends to deny
an accused person the usual constitutional protections that should be
guaranteed. It also creates judicial uncertainty and courts have
generally found it difficult to articulate the ingredients of the
offence. For one thing one struggles to grasp both the actus
reus
and
mens
rea
elements
of the offence.
In
the present case, a legal practitioner was making submissions before
the court to the best of his ability when he offended the magistrate.
Acting
as both the prosecutor, judge and executioner, the magistrate ordered
that the legal practitioner be handcuffed and detained. There was no
recourse to any other authority thereby sealing the fate of the
hapless legal practitioner.
Indisputably,
it is a necessary feature of every system of adversarial
administration of justice that there should be a higher court in the
hierarchy to correct judicial errors and to curb the excesses of
judicial officers like the first respondent. Such errors should be
capable of being corrected, reversed or varied at a higher level.
I
state the obvious when I say that in an adversarial system, litigants
should have an unrestricted right of appeal or review to serve as a
check on the exercise of judicial power in cases where litigants are
aggrieved.
Our
system provides the applicant with a remedy, that of seeking a review
of the proceedings in this court where the applicant is aggrieved.
The applicant chose that route and filed an application for review in
HC8260/15 which application is now pending and is yet to be
determined.
Even
after the drama involving the arrest of a legal practitioner while
discharging his duties in court, the first respondent's attention
was drawn to the fact that the proceedings had been brought before
this court on review. He was asked to defer the criminal trial until
the determination of the review application in HC8260/15. Predictably
the first respondent refused. Instead he has directed that the trial
resumes on 24 September 2015, never mind the pending review
application.
The
applicant has now been forced to bring this urgent application for a
stay of the criminal proceedings before the first respondent who is
itching to proceed tomorrow.
In
that review application, the applicant argues that he has a
reasonable apprehension that the first respondent is biased and that
his conduct throughout the proceedings means that there is no way the
applicant can have a fair trial. For that reason, before the trial
resumes, he deserves to be heard by this court on that application.
In
my view, the dispassionate manner in which a judicial officer is
supposed to conduct proceedings is missing in this matter. In fact
the first respondent appears determined to try the applicant without
further ado and will pull all the stops to achieve that, as if an
accused person has no rights at all and as if life itself depends on
the trial proceeding.
This
is a criminal matter in which the offence was allegedly committed on
17 July 2015. The trial was ordered to commence on 18 August 2015,
exactly one month later. There has been no delay whatsoever and as
such one wonders what informs the decision of the judicial officer to
proceed with the trial with indecent haste at the expense of justice
and fairness.
In
order to succeed in securing a stay of proceedings pending the review
application, the applicant must establish those factors which would
entitle him to a temporary interdict, namely;
(i)
a prima
facie
right;
(ii)
an injury actually committed or reasonably apprehended;
(iii)
the absence of similar protection afforded by any other ordinary
remedy; and
(iv)
a balance of convenience favouring the grant of the interdict.
For
interdict it is when the respondents are barred from proceeding with
the trial; Boadi
v Boadi & Anor
1992
(2) ZLR 378; Tribac
(Pvt) Ltd v Tobacco Marketing Board 1996
(2) ZLR 52 (S).
I
am satisfied that all the above requirements have been met and that
this is an appropriate case for a stay of the proceedings in the
criminal court to allow the applicant to pursue the remedy of review
which is available to him at law.
Accordingly,
the provisional order is hereby granted in terms of the draft order
as amended.
Warara
and Associates,
applicant's
legal practitioners
The
Prosecutor General,
respondents' legal practitioners
