This is an
application referred to this Court in terms of section 24(2) of the old
Constitution.
The applicant
seeks an order for a permanent stay of his prosecution on the basis that his
rights in terms of section 18(1) and (2) of the old Constitution have been
violated owing to the delay in finalizing his trial.
FACTUAL
BACKGROUND
The facts which
gave rise to this application are these. On 18 April 2005, the applicant
attended the Independence Day Celebrations at a farm homestead in
Featherstone. At around 14.00 hours of the same day, the applicant had a
misunderstanding with the deceased, Wilbert Mapurisa, concerning contributions
towards the Independence Day celebrations. At about 19.00 hours, the
applicant approached the deceased where he was seated and eating some
food. Without saying anything to him, he suddenly attacked him. He
kicked him on his back and stomach several times. The deceased fell to the
ground, started vomiting, and became unconscious.
The deceased was
carried into one of the rooms at the homestead by people who were attending the
celebrations. They rendered some first aid and he regained consciousness during
the night. On the following day, at about 07.00 hours, the deceased was
ferried to St Michael's hospital in Mamina for treatment where he was admitted
due to the seriousness of his condition. On 21 April, the deceased died.
A post mortem
examination was conducted and the doctor found that the death was caused by
severe peritonitis, perforated colon, and blunt trauma consistent with a kick.
The applicant was
arrested and charged with the crime of murder on 21 April 2005 and placed on
remand at Chivhu Magistrates Court. He was granted bail after spending
twenty days in custody.
On 4 April 2006,
the murder charge was reduced to culpable homicide. The Attorney General's
Office directed that the matter be tried before a Regional Magistrate at
Chitungwiza Magistrates Court as there was no Regional Court at Chivhu. The
trial failed to commence on a number of occasions. On 9 February 2009,
when the matter was set down for trial, the applicant made an application for
the matter to be referred to the Supreme Court in terms of section 24(2) of the
old Constitution on the basis that there had been an inordinate delay in
finalising the trial. The applicant sought the following relief:-
“1. A declaration
that the respondent had failed to prosecute the matter against him timeously
and within a reasonable period in violation of his right as set out in section
18(2) of the Constitution of Zimbabwe.
2. An order that
the prosecution of the applicant by the respondent be stayed permanently.”
The trial
magistrate determined that the application had merit and duly referred the
matter to this Court.
RELEVANT
CONSTITUTIONAL PROVISIONS
Section 18 of the
old Constitution provides for equal protection of the law to all
persons. The relevant provisions state as follows:-
“(1) Subject to
the provisions of this Constitution, every person is entitled to the protection
of the law.
(2) If any person
is charged with a criminal offence, then, unless the charge is withdrawn, the
case shall be afforded a fair hearing within a reasonable time by an
independent and impartial court established by law.”
In S v Nhando & Ors 2001 (2) ZLR 84 (S)…,
CHIDYAUSIKU ACJ…, quoting the case of In
Re Mlambo 1991 (2) ZLR 339 (SC) and other cases decided by this Court,
reaffirmed the factors to be taken into account in determining whether or not
an applicant has been deprived of his right to a fair and speedy trial. He
set these out as follows:
“(a) The length
of the delay;
(b) The reasons
for the delay;
(c) The assertion
by the accused of his or her right to a trial; and
(d) The prejudice
to the accused caused by the delay.”
I will examine
each of the above factors in turn.
THE
LENGTH OF THE DELAY
The right to a hearing
within a reasonable time is enshrined in the Constitution. Although the
term “reasonable time” is not defined in the Constitution, this depends on the
circumstances of each case.
In the case of In Re Mlambo 1991 (2) ZLR 339 (SC) a
delay of four years and seven months was held to be presumptively
prejudicial. It was further held that the timeframe commences from the
date of arrest and that a withdrawal of charges before plea does not interrupt
the timeframe.
In the case of Shumba v Attorney General 1997 (1)
ZLR 589 (S) a delay of six months was held to be too short to give rise to an
enquiry.
In this case, it
was common cause that at the time that the application for referral was made
there had been a delay of three years and ten months. Taking into account
that this was not a particularly complicated case, the matter should have been
finalized in a much shorter period.
In the
circumstances, it is my view that the delay in this case was presumptively
prejudicial.
THE
EXPLANATION FOR THE DELAY
The applicant was
on remand from 21 April 2005 to 10 December 2007 when the charges were
withdrawn before plea. It is not in dispute that the State failed to
proceed to trial on 10 December 2007 because the witnesses failed to attend
court. Thereafter, a warrant for their arrest was issued and they were
subsequently arrested and brought to court. It is common cause that between 16
October 2008 and 10 November 2008 the matter could not proceed as the police
could not locate the applicant at his residence. On 8 December 2008, the
applicant's legal practitioners sought a postponement of the case as they had
misplaced the State papers that they had been served with. The matter was
postponed to 20 January 2009 for trial. On 20 January 2009, the matter did
not proceed as the applicant's legal practitioner was not present,
necessitating the postponement of the matter to 9 February 2009.
On the evidence
that is on the record, the State alleges that the delay is attributable to the
applicant while the applicant alleges that it was the State that failed to
prosecute him on time.
It should be
noted that although the police stated in their evidence that the matter failed
to commence on a number of occasions because they could not locate the
applicant, an examination of the evidence does not disclose why he could not be
located. This issue was not considered during the hearing before the court
a quo. The police diary logs do
not indicate what efforts were made to serve the applicant with the summons. It
is left open to conjecture that it could very well be that the applicant was
merely not at his place of residence when they arrived to serve him. There is
no indication, on the papers, that the applicant had put himself beyond the
reach of the police.
From the record,
it is also clear that the State failed to prosecute the applicant because on
several occasions the State witnesses failed to turn up even though the
applicant was present. It is common cause that at some stage the State had to
have a warrant of arrest issued against its own witnesses because they failed
to attend court.
On 9 February
2009, when the trial was supposed to commence, the applicant then made an
application to have the matter referred to this Court arguing that his rights
to a speedy trial had been violated. It took the trial magistrate several
months to determine the application. The application for referral was only
granted on 1 September 2009.
On a careful
examination of the reasons given for the delay in commencing the trial, it
seems to me that the delay may be ascribed to both the applicant and the
respondent. In these circumstances, the applicant cannot rely on the delay
as a reason for seeking a permanent stay of the criminal proceedings.
WHETHER
THE APPLICANT ASSERTED HIS CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL
In order for this
Court to properly determine whether or not the applicant is entitled to the
relief that he seeks, he must show that he asserted his rights to a speedy
trial. In S v Banga 1995
(2) ZLR 297 (S), it was held as follows:-
“…, the applicant
must assert his right to a trial within a reasonable time. A failure to object
along the way until the stage is reached when the State is able to commence the
trial will lead to the inevitable inference that the accused was quite content
to leave the situation in abeyance in the hope that somehow the charge would be
forgotten; and that his eleventh hour protest was nothing more than a desperate
tactic to avoid the outcome of the trial.”
It is apparent
that throughout this period the applicant did not demand a trial.
No evidence was
led on any attempts made by the applicant to object to the delay to bring him
to trial. All he did was to make an application for a refusal for further
remand until the State withdrew the matter before plea on 10 December 2007.
There is no indication, on the papers, that he ever demanded that the matter be
heard. To the contrary, it appears that he was more concerned about the demands
upon his time when he attended court and therefore wanted the charges withdrawn
against him.
It appears that
the applicant may have been under the impression that once the charges against
him were withdrawn such charges would then be forgotten.
WHETHER
THE DELAY HAS PREJUDICED THE APPLICANT
When the
applicant gave evidence on the possible prejudice he would suffer as a result
of the delay, he stated that one of his defence witnesses had died and the
other two could not be located.
However, there
was no evidence placed on the record as to what efforts had been made to find
these two witnesses.
He also testified
that the anxiety had affected him to such an extent that at one stage he
attempted to commit suicide by taking poison.
The delay in
prosecuting a case will inevitably affect an accused person as he will have
forgotten some of the evidence. Indeed, the applicant in this case stated that
it was difficult for him to remember the events of the case due to lapse of
time. That this may be possible was conceded by the State. However, this is not
unique to the applicant as the same difficulty will affect the State witnesses.
On the claim that
it may be difficult to locate the two remaining defence witnesses, no detail
was given on the efforts that had been made to locate them.
DISPOSITION
In deciding
whether or not to grant a stay in proceedings, the Court must consider the
various factors together. The applicant faces a very serious offence. It is not
in dispute that a life was lost at the hands of the applicant.
The delay in
prosecuting the matter was partly the fault of the applicant. He also did not
assert his constitutional right to a speedy trial. Although counsel for the
applicant submitted that the applicant would be prejudiced by the delay in
prosecuting this matter, in my view, he did not show that his rights under section
18 of the old Constitution have been violated.
Accordingly, the
application must fail.
It is hereby dismissed with no order as to
costs.
