Before:
CHIDYAUSIKU CJ: In Chambers
This
is a Chamber application in which the applicant sought an order in
terms of the draft. The applicant and the fourth respondent consent
to an order of the Court in terms of the draft order, as amended.
The
third respondent's position is that he will abide by the decision
of the Court.
The
first and second respondents persist in their opposition to the
granting of the original draft order and the order by consent.
When
asked by the Court to provide the legal basis for their attitude,
they were not able to advance any legal basis for their continued
opposition to the granting of the order consented to by the applicant
and the fourth respondent.
This
quite clearly evinces an attitude of: “Why be difficult when one
can be impossible?”
The
papers before the Court clearly reveal that there is a real
possibility that due process was not complied with in the handling of
this matter.
In
the light of that, the concession by the Prosecutor General is based
on sound legal considerations in this matter.
Quite
clearly, a definitive decision on whether or not there was failure of
due process in the handling of this matter can only be determined by
the Constitutional Court, as opposed to a Judge sitting in Chambers.
It is for the Constitutional Court, if it so finds that there were
procedural failures of due process in this matter, to decide what
remedies are available to the applicant.
The
first and second respondents have no locus
standi
to drive this process forward without the fourth respondent, who is
the dominus
litis
in all criminal prosecutions. Their continued and persistent
opposition to the application is driven by something other than legal
considerations.
I
accordingly grant an order in terms of the consent draft order
between the applicant and the fourth respondent. The consent draft
order reads as follows:
“1.
The Registrar is directed to set the matter down for hearing on an
urgent basis.
2.
Pending the determination of the case action in case no. CCZ73/2016,
the criminal proceedings envisaged against the applicant in terms of
the charges levelled against him by the first respondent are stayed.”
The
timetable for the set down of the main Court application will be
agreed between the applicant and the fourth respondent in
consultation with the registrar of this Court.
The
applicant and the fourth respondent have now agreed on the timetable
and the agreed timetable is hereto attached.
“AGREED
TIMETABLE FOR THE SET DOWN OF THE MAIN APPLICATION
1.
The respondents shall file and serve their notices of opposition by
15 November 2016.
2.
The applicant is to file an answering affidavit by 18 November 2016.
3.
The applicant is to file and serve heads of argument by 25 November
2016.
4.
The respondents shall file their heads of argument by 2 December
2016.
5.
The Registrar is to set the matter down for hearing on the first
available date thereafter.
6.
Should any party find the need to file supplementary heads of
argument, the same shall be filed not later than four days before the
date of set down.”
Costs
will be costs in the cause.
Hussein
Ranchod & Co,
applicant's legal practitioners
Civil
Division of the Attorney-General's Office,
first, second and third respondents legal practitioners
Prosecutor-General's
Office,
fourth respondent's legal practitioners
