Urgent
Application
PATEL
J:
The
applicant herein is the Minister of State responsible for
Presidential Affairs. He was formerly the Minister responsible for
Land Reform and Resettlement. The applicant originally sought an
order, inter alia, staying and eventually setting aside the execution
of a warrant of arrest issued against him on the 6th of October 2009.
The
warrant of arrest was then cancelled on the 9th of October, on the
very day that this application was filed, and is no longer of any
concern.
Nevertheless,
the applicant still seeks an interim order barring the 1st
respondent, who was the presiding magistrate in a criminal matter
before the Chinhoyi Magistrates Court, from compelling him to testify
in that matter. He also seeks a final order setting aside the
subpoena issued on the 2nd of October 2009 for him to attend and
testify in the criminal matter.
The
latter involves the prosecution of the 4th respondent under the
Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has
been set down to resume on the 4th of November 2009.
Objections
in limine
Counsel
for the 4th respondent has raised several objections in limine:
(i)
firstly, that the applicant's plea on the merits is one of State
privilege and, as such, it must be raised by way of a sworn affidavit
from the head of the Ministry concerned, viz. the Ministry
responsible for land resettlement, and not by the applicant himself;
(ii)
secondly, that the applicant's founding affidavit and his lawyer's
supporting affidavit must both be disregarded as the former contains
no substantive averments and the latter cannot be used in support of
an affidavit that avers nothing of substance.
As
regards the first objection, counsel relies on Feltoe: A Guide to
Administrative and Local Government Law in Zimbabwe (2006) at p.94.
While
I have no doubt that the learned author is correct in his general
statement of the procedure to be applied, I am not persuaded that his
proposition necessarily and invariably applies to every claim of
privilege by a witness in terms of section 295 of the Criminal
Procedure and Evidence Act [Chapter 9:07], viz. on the grounds of
public policy and/or public interest.
In
my view, the form in which the privilege is claimed would depend upon
the nature of the evidence in question and the context in which the
evidence is called for.
In
the instant case, it seems to me that the privilege has been
appropriately raised through the supporting affidavit of the
applicant's lawyer. Accordingly, the 4th respondent's objection
in this regard cannot be sustained.
Turning
to the second objection, it appears that the deponent to the
supporting affidavit, Itayi Ndudzo, personally attended the
Magistrates Court on the 6th of October 2009 and had personal
knowledge of the relevant proceedings and the record thereof.
As
is correctly conceded by 4th respondent's counsel, a legal
practitioner can depose to issues of procedure and issues of fact
that only he and not the client can depose to.
The
applicant himself had no knowledge of what transpired at the
Magistrates Court, except by way of hearsay, and properly associates
himself with the averments contained in Ndudzo's affidavit on the
basis that the latter was fully seized with the matter and in
attendance at the court at the relevant time.
It
follows that the preliminary objection on this point must also fail.
Basis
of Application
The
present application is by way of criminal review in terms of section
29 of the High Court Act [Chapter 7:06].
It
was raised in the course of argument by counsel that the application
is formally defective in that it has not been brought as a court
application pursuant to Rule 256 of the High Court Rules 1971 and
that the review jurisdiction of this Court must be exercised with the
concurrence of another judge.
As
regards the first point, I take the view that Rule 256 is confined to
civil matters and proceedings and does not apply to criminal reviews.
In any event, it seems unnecessary for me to decide the point for
present purposes, as I am inclined to entertain this matter on the
robust approach adopted in State v Strowitzki 1995 (2) SA 525, at
532, to wit:
“It
is not the form of the procedure used which matters so much as the
nature and substance of the application itself.”
As
for the second point, the final order sought by the applicant
requires the setting aside of the subpoena issued by the Magistrates
Court.
This
clearly falls within the purview of subparagraph (ii) of section
29(2)(b) of the Act and would require the concurrence of another
judge by virtue of the peremptory proviso to section 29(5)(b). See
Attorney-General v Makamba 2004 (2) ZLR 63 (S) at 66.
On
the other hand, the interim relief sought herein is to bar the 1st
respondent from compelling the applicant to testify pending the
granting of the final order.
This
relief, in my view, lies within the ambit of the general powers
conferred by subparagraph (vi) of section 29(2)(b) and can be granted
by a single judge in terms of section 29(5)(b).
Propriety
of Application
Section
229 of the Criminal Procedure and Evidence Act regulates the process
for securing the attendance of witnesses, as follows:
“(1)
In this section —
'prescribed
officer' means the registrar, assistant registrar or clerk of the
court or any officer prescribed by rules of court.
(2)
Either party desiring to compel the attendance of any person to give
evidence or to produce any books, papers or documents in any criminal
case may take out of the office prescribed by rules of court the
process of the court for that purpose.
(3)
When the accused desires to have any witnesses subpoenaed and
satisfies the prescribed officer of the court that —
(a)
he is unable to pay the necessary costs and fees; and
(b)
such witnesses are necessary and material for his defence; the
prescribed officer of the court shall subpoena such witnesses.
(4)
In any case where the prescribed officer of the court is not so
satisfied, he shall, upon the request of the accused, refer the
application to the judge or magistrate who may grant or refuse such
application or may defer giving his decision until he has heard the
other evidence in the case or any part thereof.”
It
is averred on behalf of the applicant that the subpoena that is
impugned in casu was issued as an order of court and not merely
through the office of the clerk of court. Accordingly, the 1st
respondent was functus officio vis-à-vis the subpoena and his
decision in that regard is properly reviewable by this Court.
In
his affidavit filed at the direction of the Court, the 1st respondent
affirms that the subpoena was originally issued by the clerk of court
at the request of the 4th respondent. Subsequently, following the
reluctance of the police to serve the subpoena, the 1st respondent
directed that the subpoena be “reissued to the police to serve the
witnesses for the defence today”.
The
1st respondent's position is that, in essence, he merely ordered
the police to serve the subpoena originally issued by the clerk of
court.
Assuming
that this evidence accurately reflects what transpired in the
issuance and re-issuance of the subpoena, the subpoena was issued not
by the 1st respondent but by the clerk of court acting in terms of
subsections (2) and (3) of section 229.
It
follows that the validity of the subpoena on its merits was never
canvassed before the 1st respondent and, therefore, he cannot be said
to be functus officio in that regard.
Ordinarily,
the applicant's claims of privilege and the validity or otherwise
of the subpoena should in the first instance be ventilated before the
Magistrates Court. Nevertheless, on the basis that the subpoena was
originally issued by an officer of the court and subsequently
reissued by order of the court, it may properly be regarded as an
order of the court itself.
Moreover,
whether the subpoena is regarded as an administrative order issued by
the clerk or as an order of the court, this Court is endowed with the
requisite jurisdiction in either case, by virtue of its inherent
jurisdiction at common law as well as its statutory jurisdiction
under section 26 of the High Court Act, “to review all proceedings
and decisions of all inferior courts of justice, tribunals and
administrative authorities within Zimbabwe”.
I
therefore deem it perfectly appropriate to deal with the merits of
this application in order to avoid further delays in the
administration of justice.
Merits
of Application
According
to the 4th respondent, the evidence of the applicant is necessary for
the purposes of his defence in his prosecution before the Magistrates
Court under section 3 of the Gazetted Lands Act.
His
defence, in essence, is that he was given an “offer letter” by
the applicant which constitutes the requisite “lawful authority”
entitling him to remain in occupation of the farm without
contravening section 3 of the Act. His evidence is that this offer
letter was returned to the applicant in order to correct a spelling
error in his name and that the letter was then never handed back to
him. He now wants the applicant to testify on his behalf by
confirming that the offer letter was in fact originally issued to
him.
The
applicant challenges the propriety of his testimony on several
grounds.
In
particular, he relies on the grounds of inadmissibility of evidence
and non-compellability of witnesses as set out in sections 252, 295
and 297 of the Criminal Procedure and Evidence Act. These sections
provide as follows:
“252.
No evidence as to any fact, matter or thing shall be admissible which
is irrelevant or immaterial and cannot conduce to prove or disprove
any point or fact at issue in the case which is being tried.”
“295.
No witness shall, except as in this Act is provided, be compellable
or permitted to give evidence in any criminal proceedings as to any
fact, matter or thing, or as to any communication made to or by such
witness, as to which, if the case were depending in the Supreme Court
of Judicature in England, such witness would not be compellable or
permitted to give evidence by reason that such fact, matter or thing
or communication, on grounds of public policy and from regard to
public interest, ought not to be disclosed and is privileged from
disclosure: Provided that ……..”
“297.
No witness in any criminal proceedings shall, except as provided by
this Act or any other enactment, be compelled to answer any question
which, if he were under examination in any similar case depending in
the Supreme Court of Judicature in England, he would not be compelled
to answer by reason that his answer might have a tendency to expose
him to any pains, penalty, punishment or forfeiture or to a criminal
charge or to degrade his character: Provided that ……..”
The
applicant's reasons for not testifying in the 4th respondent's
criminal trial are threefold:
(i)
firstly, that the evidence sought does not constitute a valid defence
to the charge and is therefore irrelevant and inadmissible;
(ii)
secondly, that he cannot be compelled to divulge matters involving
land allocation as these are privileged by dint of public policy and
public interest; and
(iii)
thirdly, that he is only being called as a witness in order to
degrade his character and he cannot be compelled to do so.
By
virtue of section 3(1) of the Gazetted Lands Act, “no person may
hold, use or occupy Gazetted land without lawful authority”.
The
term “lawful authority” is defined in section 2(1) to mean;
“(a)
an offer letter; or
(b)
a permit; or
(c)
a land settlement lease” and “offer letter” means “a letter
issued by the acquiring authority to any person that offers to
allocate to that person any Gazetted land, or a portion of Gazetted
land, described in that letter”.
As
recent case authority demonstrates, mere verbal authority to occupy
Gazetted Land or a general policy statement to that effect does not
satisfy the requirement of lawful authority for the purposes of
section 3 of the Act. See Chirikure & Others v Kenmast Farming
(Pvt) Ltd & Others HH106-2005; Chimuka & Others v Minister of
Lands & Others HC4837/07.
The
accused occupier must provide proof of a valid offer letter, permit
or land settlement lease.
Generally
speaking, the mere production of an offer letter would, unless the
origin or authenticity of the letter is questioned, avail as a
complete defence to a charge of contravening section 3.
However,
where the offer letter in question is lost or destroyed, the evidence
of the issuing authority or other public official may be necessary in
order to establish that the letter was in fact issued to the occupier
concerned at the relevant time. Such evidence would undoubtedly
constitute the requisite lawful authority and a valid defence against
a charge of contravening section 3.
Having
regard to the foregoing, I am satisfied that the testimony required
from the applicant as to whether he did or did not issue an offer
letter to the 4th respondent in relation to the land in question, is
highly relevant and clearly admissible for the purposes of the 4th
respondent's acquittal or conviction under section 3.
Moreover,
given that such evidence is to be elicited from the applicant in
relation to what he himself did or did not do vis-à-vis the 4th
respondent as the authority responsible for issuing offer letters,
there can be no question of him having to divulge any official secret
or other confidential information inimical to public policy or the
public interest.
I
am therefore quite unable to perceive any logical basis for the
privilege claimed by the applicant on the facts of this case.
As
for the possible degradation of his character, there is nothing
meaningful in the founding papers to substantiate the apprehended
attack on his character. Ultimately, any such apprehension must be
weighed against the constitutional right of every accused person to
be afforded a fair criminal trial as enjoined and guaranteed by
section 18(3) of the Constitution and, in particular, the right “to
obtain the attendance and carry out the examination of witnesses to
testify on his behalf”.
It
follows that the applicant has failed to establish any basis for
justifying the interim relief that he seeks. Accordingly, this Court
cannot interfere with the subpoena issued by the Chinhoyi Magistrates
Court by barring the 1st respondent or any other magistrate from
compelling the applicant to testify at the 4th respondent's
criminal trial.
As
regards costs, applicant's counsel conceded at the hearing of this
matter that the 1st respondent should not have been cited in his
personal capacity and that he was entitled to his wasted costs,
including the costs of appearance by counsel.
It
is accordingly ordered that the applicant shall pay the 1st
respondent's costs on a legal practitioner and client scale.
As
for the other respondents, although the applicant has failed on the
merits of his application, I am not persuaded that his approach to
this Court was so unjustified or unnecessary as to warrant a punitive
award of costs. The 2nd, 3rd and 4th respondents are therefore only
entitled to their costs on the ordinary scale.
In
the result, this application is dismissed with costs as aforesaid.
Mutamangira
& Associates, applicant's legal practitioners
Civil
Division of the Attorney-General's Office, 1st, 2nd and 3rd
Respondents' legal practitioners
Mushonga,
Mutsvairo & Associates, 4th respondent's legal practitioners
