GARWE JA:
[1] After
perusing the papers filed of record and hearing counsel, the court dismissed
the application and indicated that the reasons for the order would follow in
due course.
[2] What
follow are the reasons for that order.
FACTUAL
BACKGROUND
[3] The
applicants appeared before a Magistrate at Nyanga on 18 February 2011 facing
charges of public violence as defined in Section 36 of the Criminal Law
[Codification and Reform] Act, [Chapter 9:23]. The applicants were legally represented. At the hearing the applicants raised a number
of complaints regarding the manner of their arrest. The matter was thereafter postponed on a
number of occasions to enable the Court to deal with the various issues raised. On a date that is unclear on the record but
in May 2011, the applicants, without giving notice to the prosecution, applied to
the magistrate for the matter to be referred to the Supreme Court in terms of
s 24 (2) of the former Constitution of Zimbabwe. They tendered a written application in which
they chronicled various violations of their constitutional rights at the instance
of the State and other persons.
[4] In
the application, the applicants raised the following issues:
- Whether or not the manner of their arrest
violated their right to liberty protected by s 13(1) of the former
Constitution.
- Whether or not the failure by the police to
apprehend the persons who had abducted, tortured and assaulted them violated
their right to the protection of the law enshrined in s 18 (1).
-
Whether or not the discretion to
arrest bestowed upon the police was not improperly exercised.
-
Whether or not the assaults,
perpetrated upon them, as well as the subsequent torture and denial of medical
attention, constituted inhuman and degrading treatment.
-
Whether or not the failure by
the State to cause investigations to be carried out into these complaints
violated their rights under s 18 (1) and 18 (1) (a) of the Constitution.
-
Whether or not their detention
at Nyamaropa and Nyanga Police Stations was under conditions that constituted
inhuman and degrading treatment.
- Whether or not s 121 (3) of the Criminal
Procedure and Evidence Act [Chapter 9:07],
which provides that a person who has been granted bail by a court shall remain
in custody for a period of up to 7 days once the Attorney- General indicates
that he intends to appeal the decision, violates their right to the protection
of the law.
[5] During
the hearing before the Magistrate, the applicants did not lead any evidence to
substantiate these claims.
[6] In
his response, the prosecutor indicated that the application for referral was
opposed. He denied the suggestion that
the police did not have a reasonable suspicion that a crime had been committed at
the time they arrested the applicants.
[7] In
a terse judgment, the magistrate held that the issues of over detention and
alleged kidnapping of the applicants deserved “the attention of the Supreme
Court which court would need to make a proper inquiry”. On that basis he then referred the matter to
the Supreme Court.
ISSUES
FOR DETERMINATION BEFORE THIS COURT
[8] In
his submissions before us, Mr Chadambuka,
for the applicants, submitted that the rights of the applicants have been
violated in several respects. He
therefore implored the court to issue various declaraturs and, as consequent relief, an order permanently staying
the criminal proceedings they were being subjected to.
[9] On
the other hand, Mr Nyazamba, for the State, urged this Court to find that no
proper inquiry had been carried out before the Magistrates' Court and, most
importantly, the failure by the applicants to lead evidence to substantiate
their allegations was fatal. He
therefore prayed for the dismissal of the application.
WHETHER
THE MATTER WAS PROPERLY REFERRED
[10] The
position is settled that a judicial officer faced with an application for
referral has no option but to refer, unless, in the opinion of the Court, the
raising of the question is frivolous and vexatious – Martin v Attorney-General
1993 (1) ZLR 153 (S) 156 H.
[11] The
Magistrate at Nyanga did not, as he should have, ask himself whether the issues
raised were not frivolous and vexatious.
Indeed it appears the magistrate was not sure as to what was required of
him. He made no finding that the
application was not frivolous or vexatious.
In justifying the referral of the issues to the Supreme Court, he
stated:-
“Over-detention
and alleged kidnapping of some of the accused persons would need the Supreme
Court to look into the matter.
It is
therefore clear as the issues complained of are also linked to the death of one
of the accused persons. The Supreme
Court would need therefore to make a proper enquiry (sic).
The
court is of the decision that the issues raised concerning the declaration of
rights are referred to Supreme Court for determination.”
[12] The
above remarks clearly demonstrate that the Magistrate had no idea what he was
supposed to do. He seemed to think that the
factual inquiry was to be undertaken by the Supreme Court – clearly a
misdirection on his part. This
misdirection resulted in an even more serious irregularity, to which I now turn.
AN
APPLICANT MUST ADDUCE EVIDENCE
[13] Various
allegations of impropriety had been made against the police and supporters of
the Zanu (PF) Political Party. No
evidence was led to substantiate these.
The prosecutor made it clear that the facts were in dispute.
[14] Before
permitting an accused person to raise the question whether his constitutional
rights have been violated, it is a requirement that ample written notice of
such an application should be given to the State. This is because the prosecution is entitled
to be afforded the time and opportunity to investigate the complaint and to be
ready to adduce evidence, if necessary - S
v Banga 1995 (2) ZLR 297.
[15] Further
it is insufficient to make a statement from the bar, as the applicants' legal
practitioners did in this case. The
applicants should have been called to testify under oath in order to
substantiate their complaints that their rights had been violated. Had that happened the prosecutor would then
have had the opportunity to cross -examine the applicants and, thereafter,
to adduce such evidence as he may have considered necessary to contradict the
allegations made by the applicants. Only
after hearing evidence from both sides would the magistrate have been in a
position to make findings of fact, which findings he would have been bound to
take into account in deciding whether or not to refer the issues raised to the
Supreme Court. In short, it is the
responsibility of the court referring a matter to resolve any disputes of fact
before making such a referral.
[16] The
absence of oral evidence can be fatal to an application of this nature because
it completely disables findings to be made on the complaints raised. It is on the basis of those findings that the
Supreme Court is called upon to deal with the allegations raised and, where
necessary, afford appropriate relief.
[17] In S
v Banga (supra) GUBBAY CJ remarked
at p 301 E-G:-
“I
trust that I have made it clear that it is essential for an accused, who
requests a referral to this court of an alleged contravention of the
Declaration of Rights to ensure that evidence is placed before the lower court.
It is on that evidence that the opinion has to be expressed as to whether the
question raised is merely frivolous or vexatious. It is on that record that the
Supreme Court hears argument and then decides if a fundamental right had been
infringed. Only in exceptional circumstances will an applicant be permitted to
supplement the record of the proceedings before the lower court by the
production of affidavits.”
[18] The
above remarks have been repeated by this Court in several other cases since
then. See for example the following: Matutu v S SC 34/13, Hellen Matiashe v (1) The Honourable
Magistrate Mahwe N.O. (2) The
Attorney General of Zimbabwe CCZ 12/14.
APPLICATION
NOT PROPERLY REFERRED
[19] This
application was therefore not properly referred to the Supreme Court sitting as
a Constitutional Court.
[20] In the circumstances, the Court had no
option but to dismiss the application.
CHIDYAUSIKU CJ: I
agree
MALABA DCJ: I agree
ZIYAMBI JCC: I agree
GWAUNZA JCC: I agree
GOWORA JCC: I agree
HLATSHWAYO JCC: I agree
GUVAVA JCC: I agree
MAVANGIRA AJCC: I agree
Zimbabwe
Lawyers for Human Rights, applicant's legal
practitioners
Attorney General's Office, respondent's legal
practitioners
