Indictment or Charge re: Constitutional Rights iro Arrest, Detention or Incarceration and Prosecution ito Approach

HH42-12 : WILLARD CHAWIRA vs THE STATE
Ruled By: UCHENA J and MWAYERA J

Section 163 of the Criminal Procedure and Evidence Act provides for the timing of an accused person's trial in the Magistrate's Court as follows:“Any person to be prosecuted on a criminal charge in a magistrate's court shall be brought for trial at the next possible court day.”This, in my view, ...

HH63-10 : THE STATE vs YOMENCE CHAITEZVI and NOTICE KIDA and OBERT MUCHEMWA and ZVIDZAYI MARUFU and JACOB KAGOGODA
Ruled By: PATEL J and ASSESSORS: CHIDYAUSIKU and TUTANI

All three accused..., are found guilty of the offence of conspiring to murder the deceased....,.The finalisation of this matter has been hampered by several factors. In particular, at the conclusion of the trial, counsel for the State moved on to the Regional Bench without having properly handed over the further ...

HH149-09 : THE STATE vs K A JUVENILE
Ruled By: UCHENA J and ASSESSORS: NYANDORO and MUTAMBIRA

The condition of a prison does not justify the court's refusal to send to prison those the law says must be sent there.In an ordinary case, not under the Mental Health Act, the court would, at most, reduce the period of imprisonment in recognition of the hardship to be faced ...

HH15-10 : THE STATE vs ROY BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

In this case, the State is seeking the impeachment of its main witness, one Michael Peter Hitschman, in terms of section 316 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the grounds that the witness has materially departed from his previous statements.The section provides that:"316 Impeachment and support ...

"316 Impeachment and support of witness credibility

It shall be competent for any party in criminal proceedings to impeach or support the credibility of any witness called against or on behalf of that party in any manner and by any evidence in and by which, if the proceedings were before the Supreme Court of Judicature in England, the credibility of such witness might be impeached or supported by such party, and in no other manner and by no other evidence whatever:

Provided, that, any such party who has called a witness who has given evidence in any such proceedings, whether that witness is or is not, in the opinion of the judge or judicial officer presiding at such proceedings, adverse to the party calling him, may, after the said party or the said judge or judicial officer has asked the witness whether he has or has not previously made a statement with which his testimony in the said proceedings is inconsistent and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been mentioned to the witness, prove that he previously made a statement with which his said testimony is inconsistent."

It is trite and a matter of elementary law, that, a party calling a witness may not contradict, discredit, or challenge its own witness's evidence unless that witness has been declared a hostile or adverse witness by the court. If, however, any authority is required for that proposition of law, one need not look further than the case of S v Mazhambe & Ors 1997 (2) ZLR 587.

JW HORN, in his article, Discrediting One's Own Witness, published in the Rhodesia and Nyasaland Law Journal 1961…, defines an adverse witness in the following terms:

"An adverse witness is one who shows himself to have a mind hostile to the party calling him, or to the interests of such party. Such hostility may be inferred from one or more of the following: his demeanour in the witness stand, his relationship with either party, his previous conduct, or the fact that he has made a previous statement inconsistent with his evidence."

Having said that, the learned author proceeds to say, that, once a witness has been declared adverse, the party calling the witness is free to cross-examine him.

Where the witness gives evidence which is inconsistent with a statement made by him previously, the party calling him may prove such statement.

The nature of the previous statement takes many forms. The learned author states that:

“5. Such a statement may be oral, or written, and need not have been made to the party calling the witness, or for the object of being used in the proceedings in which the witness is testifying.

6. The witness should be given sufficient particulars of the alleged statement to designate the occasion upon which it was made.

7. The witness should then be asked whether he admits to having made a statement on the occasion specified. If the statement is signed, he may be asked to admit or deny his signature.

8. The previous statement must be shown to be inconsistent with the testimony of the witness by the party desiring to produce it. Any statement, or part of any statement, which would be inadmissible if led as evidence cannot be relied upon to show such inconsistence.”

The facts giving rise to these impeachment proceedings, are, to a large extent, common cause.

The brief undisputed facts are, that, on 6 March 2006, the witness was found in possession of a large quantity of firearms, ammunition, and arms of war. He was then arrested and detained, together with the recovered weapons and ammunition, at Adams Barracks, by a group of State agents comprising the police, army, and CIO personnel. He was later transferred to police custody on charges of insurgency, terrorism, sabotage, and unlawful possession of firearms.

While under detention, the witness made certain written statements and indications.

On 7 March 2006, he made a hand written statement at Adams Barracks, and, on 11 March 2006, he made a typewritten affidavit at CID offices.

The witness also made indications which were captured on video tape at Adams Barracks.

In all those statements and indications, he confessed and admitted having committed the offence in collusion with others - including the accused. He implicated the accused, alleging that he was responsible for financing the whole criminal enterprise to violently effect regime change through force of arms.

The witness admitted, in open court, that, he made the said statements and indications to State authorities. He however placed the admissibility of the statements and indications in issue saying that they were involuntarily extracted from him through torture under unfriendly and hostile circumstances.

It is common cause, that, when the witness made the said statements and indications he had not been properly warned and cautioned.

The handwritten statement was not signed or witnessed by anyone.

The witness told the court, that, his tormentors were drunk and disorderly, such that, in their drunken state, they omitted to make him sign the statement. Having noted the omission, he then deliberately refrained from signing it, signifying his lack of free volition.

The witness was subsequently charged with substantially the same charges as the accused. He appeared before CHITAKUNYE J whose verdict reads as follows;

"From the above, this court is of the view, that, the accused cannot be found guilty of the main charge. He (is) found not guilty and acquitted on the main charge. He is, instead, found guilty of the possession of dangerous weapons in contravention of section 13(1) of POSA."

He was then sentenced to four years imprisonment of which one year was suspended on appropriate conditions. He has since completed serving the prison term although he has an appeal pending in the Supreme Court.

Upon being served with a subpoena to give evidence as a State witness in these proceedings, the witness responded by delivering to the Attorney General an affidavit in November 2009. In paragraph 12 of that affidavit, he absolves the accused of any wrongdoing or complicity in the commission of any related charges. In paragraph 12 he had this to say:

"Consequently, therefore, and as the police are fully aware, there is no relevant testimony I can give in respect of the charges now being brought against Mr Leslie Roy Bennett who was not involved in my firearms business or in any dealings I had with firearms. In any event, I do not believe that I have been validly subpoened, and, unless advised to the contrary, I do not intend to appear in court on 9 November 2009."

Despite his protests, the witness attended to give evidence as a State witness at the accused's trial.

It is also common cause, that, the Attorney General called the witness to give evidence with the full knowledge that he was likely to give evidence adverse to the State case.

Not surprisingly, when he appeared in court, the witness gave evidence which is unfavourable to the State case and heavily leans in favour of the accused.

It is on that basis, that, the State put in motion these impeachment procedures.

I now turn to consider the admissibility of the previous inconsistent statements upon which the State relies in its bid to impeach its own witness.

It is not in dispute that both statements and indications were made at the instance of State authorities.

It is a legal requirement, that, the police must properly warn and caution an accused person before asking him to make a statement for production in court.

It is also common cause, that, the witness was not properly warned and cautioned according to law before making the statements.

That being the case, the statements were obviously inadmissible against the witness; this explains why they were not used at his own trial.

It follows, as a matter of common sense, that, if the statements and indications were inadmissible against the witness, they were equally inadmissible against his alleged accomplice, that is to say the accused.

Having examined the statements and indications in question, I have no doubt, that, they are not ordinary witness statements. They are, in fact, confessions made by the witness, not in his capacity as a witness, but, as an accused person pending his own prosecution.

Section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:

"259 Confession not admissible against other persons

No confession made by any person shall be admissible as evidence against any other person."

The section is couched in simple, clear language such that it needs no further elucidation. It constitutes a prohibition thereby making its provisions peremptory and absolute.

I accordingly hold, that, the statements and indications in question, if tendered as evidence, will be inadmissible against the accused.

HH26-13 : THE STATE vs TAPIWA PARWADA
Ruled By: MATHONSI J

Prior to his appearance before the trial court, the accused person had been over-detained by the police for 7 days with his family unaware of his whereabouts.

View Appeal HH29-11 : STATE vs BIGKNOWS WAIROSI
Ruled By: UCHENA J and ASSESSORS: BARWE and GONZO

Detective Sgt Nhari also tried to mislead the court when he said the accused was taken to court within the stipulated 48 hours. He later conceded that he only took him to court for the confirmation of the warned and cautioned statement. According to exhibit 5, that was on 28 June 2007 - when the ...

HB20-11 : STATE vs THULANI NCUBE
Ruled By: MATHONSI J and NDOU J

For some reason, even as the accused was pleading guilty to the charges, he was not brought for trial until 26 October 2010 - some 19 months later.

CCC03-13 : DOUGLAS MUZANENHAMO vs OFFICER IN CHARGE CID LAW AND ORDER and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

This is an application under section 24(1) of the former Constitution for declaratory and consequential relief pursuant to the Declaration of Rights enshrined in that Constitution.

The applicant in this matter is HIV positive. He started his anti-retroviral treatment in 2003. On 19 February 2011, he was arrested at a meeting held to commemorate an AIDS activist. On the day of his arrest, he was detained at Harare Central Police Station and then taken to Harare Remand Prison on 23 February 2011.

The applicant avers that he was subjected to various forms of ill-treatment during his detention at both prisons and that his fundamental rights were consequently violated by the respondents.

In particular, he complains, that, at Harare Central Police Station, he was not allowed to use his cell-phone and was thereby denied access to his anti-retroviral medication. Furthermore, he was required to remain barefoot and with only one layer of clothing. In addition, the toilet facilities in the holding cells were unhygienic and deplorable. At Harare Remand Prison, he was denied access to his prescribed medication regime. Moreover, together with other inmates, he was stripped and made to jump up and down, and placed in solitary confinement for four days when he complained.

Having regard to this ill-treatment, the applicant seeks a declaratur to the effect that the respondents contravened sections15(1) and 20(1) of the Constitution relative to the protection against inhuman or degrading treatment and his freedom of expression, and that the conditions in the holding cells at Harare Central Police Station and the practice at Harare Remand Prison, of requiring inmates to strip naked, be declared inhuman and degrading.

He also seeks an order requiring the respondents to ensure that inmates be allowed full access to their respective anti-retroviral regimes, that no inmate be required to walk barefoot or be left with inadequate clothing, and that the toilet facilities in the holding cells at Harare Central Police Station be rehabilitated.

The respondents deny most of the applicant's assertions.

As regards Harare Central Police Station, they aver that the governing Police Manual prescribes that every inmate be required to surrender all his possessions, other than clothing for personal use, so as to avoid his harming himself; again, cell phones, and other valuable articles, are ordinarily taken for safe custody.

The applicant did not request his cellphone and did not tell the police officers concerned about his HIV status and anti-retroviral regime.

All inmates in holding cells are given three blankets each and the toilets are cleaned and inspected every day. However, the toilet flushing mechanisms are placed outside the cells and therefore cannot be used by the inmates themselves. The respondents also concede that the conditions in the holding cells are not entirely acceptable. However, their rehabilitation is not immediately practicable.

With respect to Harare Remand Prison, the respondents aver that they employ qualified doctors to administer appropriate medication and that inmates may only bring their own medication if it is unavailable in the prisons stock. Moreover, the applicant did not lodge any complaint about his medication either upon admission or on discharge.

As regards strip searches, these are procedurally done and strict decency is observed.

Finally, the respondents aver that the practice of solitary confinement has been abolished and that the applicant was never subjected to this practice.

At the hearing of the matter, counsel for the applicant submitted that the respondent's assertions and denials are based on what should be in place as a matter of practice. In effect, they have failed to ascertain and rebut what actually happened to the applicant in relation to his medication and conditions of incarceration. He further submits that these bare denials do not raise any material disputes of fact that are not resoluble on the papers. The court should therefore take a robust view of the facts in order to do justice as between the parties.

Counsel for the respondents concedes that there are certain facts, for instance, the conditions in the cells at Harare Central Police Station, which are common cause. However, apart from this, there are substantial disputes of fact that were foreseeable before this application was instituted. Consequently, he submits that the matter should be dismissed or struck off to be instituted afresh.

MATERIAL DISPUTES OF FACT

As a general rule, in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party: see Masukusa v National Foods Ltd & Another 1983 (1) ZLR 232 (S)…,.; Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S)…,.; Ex-Combatants Security Co. v Midlands State University 2006 (1) ZLR 531 (H)…,.

The first enquiry is to ascertain whether or not there is a real dispute of fact.

As was observed by MAKARAU JP…, in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H)…,:

“A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence: see Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd 1949 (3) SA 1155 (T)…,.; Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd SC146-86; Boka Enterprises v Joowalay & Another 1988 (1) ZLR 107 (S)…,.; Kingstons Ltd v L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.

The respondent's defence must be set out in clear and cogent detail. A bare denial of the applicant's material averments does not suffice. The opposing papers must show a bona fide dispute of fact incapable of resolution without viva voce evidence having been heard.

See Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd 1949 (3) SA 1155 (T) cited with approval in Vittareal Flats (Pvt) Ltd v Undenge & Others 2005 (2) ZLR 176 (H)…,; Van Niekerk v Van Niekerk & Others 1999 (1) ZLR 421 (S)…,.

DISPUTES OF FACT IN THE PRESENT MATTER

In their opposing papers, the respondents make certain clear concessions in response to the applicant's averments concerning the conditions at Harare Central Police Station.

The second respondent (Officer Commanding Harare Central District) admits that the toilets in the holding cells are not screened and that there is no flushing mechanism for use by inmates within any given cell. He also accepts, that, although each inmate should be given three blankets, no mattresses are provided for inmates to sleep on.

Apart from this, all the other averments of the applicant are denied, either in their totality or in terms that substantially contradict the applicant's assertions.

In certain respects, the respondents' denials are not sufficiently detailed.

For instance, the sixth respondent (Commissioner General of Prisons) admits that strip searches are conducted in prisons, but avers simply that they are carried out procedurally and that strict decency is observed. He also asserts, rather tersely, that the practice of solitary confinement has been abolished and that the applicant was never subjected to such confinement.

Nevertheless, despite the laconic nature of these denials, and the failure to elaborate them, they are quite categorical in contradicting the applicant's averments.

Taken in the overall context, they cannot be rejected or disregarded as mere fabrication.

In the final analysis, I am of the considered view that the conflicting positions of the parties in casu are irreconcilable on the papers in several critical respects.

The affidavit evidence does not clearly establish the veracity of all of the applicant's complaints to the extent that it can be said that there is a “ready answer to the dispute between the parties in the absence of further evidence.” As was properly conceded by counsel for the applicant, all of the relief sought herein involves having to make findings of fact, and only a few of the relevant facts are resoluble on the papers.

I accordingly conclude, that, there are material and significant disputes of fact that can only be resolved by the calling of oral evidence in trial proceedings.

DISPOSITION

In determining this matter, it is necessary to have regard to the primary purpose of section 24 of the former Constitution. As was succinctly explained by BARON JA in Mandirwhe v Minister of State 1986 (1) ZLR 1 (S)…,:

“The purpose of section 24 is to provide, in a proper case, speedy access to the final court in the land. The issue will always be whether there has been an infringement of an individual's fundamental rights or freedoms, and frequently will involve the liberty of the individual; constitutional issues of this kind usually find their way to this court, but a favourable judgment obtained at the conclusion of the normal, and sometimes very lengthy, judicial process could well be of little value: and even where speed is not of the essence, there are obvious advantages to the litigants, and to the public, to have an important constitutional issue decided directly by the Appellate Division without protracted litigation.”

The facts of the present matter do not evince any need for its speedy resolution.

The applicant is no longer in custody and he does not stand in jeopardy of any immediate harm or privation being inflicted upon him. The redress that he seeks arises from events and practices that have already occurred, but relates to the prevention of their recurrence in the future.

In either case, I do not perceive any urgency warranting a rough and robust approach to the facts under consideration.

In terms of section 24(4) of the Constitution, the court is endowed with the power to:

“…, make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights.”

Given the factual disputes alluded to earlier, it is clearly not possible for this Court to proceed with this application as it stands at this stage. Matters of evidence and credibility are generally beyond the practical remit of this Court, and, without firm findings of fact, the court is unable to entertain the substantive relief sought by the applicant.

It is of course open to the court to strike off or dismiss the application on the technical ground that the applicant has adopted the wrong procedure and should have instituted this matter by way of action in the High Court. However, in view of the unquestionable public importance of the issues raised, both generally, and, in the particular context of persons with HIV or AIDS, I take the view that the discretion of this Court should be exercised in favour of retaining this matter on the roll until the constitutional issues raised are properly resolved.

I therefore consider it prudent and necessary to refer this application to the High Court for it to proceed as an action for trial and for that court to determine the matter in its entirety.

It is accordingly ordered that:

1. This application be and is hereby referred for trial to the High Court for determination on the facts and on its merits.

2. For the purposes of trial, the notice of application and notice of opposition filed of record herein shall respectively stand as the summons and notice of appearance to defend.

3. The plaintiff (the applicant herein) shall file his declaration within 10 days from the date of this order.

4. The matter shall thereafter proceed in accordance with the Rules of the High Court.

5. In the event that any party is aggrieved by the decision of the High Court, whether on the facts or on the merits, he is hereby given leave to appeal to this Court within 10 days from the date of that decision.

6. The costs of this application shall be costs in the cause.

CCC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

On 3 February 2014, under Case No HB158/13, the High Court, sitting at Bulawayo, convicted the applicant of murder with actual intent to kill. After finding that there were no extenuating circumstances surrounding the commission of the offence, the court passed a sentence of death.

The background facts surrounding the applicant's conviction and sentence were the following:

The deceased and the applicant had a love relationship which had, at the time of the deceased's demise, lasted a number of years. As a measure of his love, the applicant set the deceased up in business, in the form of a shop in the rural area in which the deceased resided. The deceased was allegedly not happy with the treatment that the applicant was subjecting her to and terminated their relationship. She subsequently entered into a new relationship with another man.

The applicant was not happy with this development.

After unsuccessful attempts to resuscitate the relationship, he proceeded to her residence, accompanied by a friend and a police detail. Thereafter, the parties proceeded to the business premises where the applicant shot the deceased and the policeman after conducting enquiries on the status of the business venture. The deceased died at the scene leading to the arrest of the applicant, and, thereafter, his conviction.

An automatic appeal followed against the conviction and sentence by operation of law.

On 17 November 2014, in his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial and applied that the matter be referred to this Court in terms of section 175(4) of the Constitution of Zimbabwe (“the Constitution”). The relevant subsection reads:

“(4) Powers of courts in constitutional matters

If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”

The Supreme Court agreed that the request was neither frivolous nor vexatious and consequently made the following order:

“IT IS ORDERED THAT:

Two constitutional issues have arisen:

1. The appellant alleges that his right to a fair hearing, guaranteed by section 69(1) of the Constitution of Zimbabwe, was violated by the presiding Judge who descended into the arena.

2. The appellant was given a sentence which was not competent in terms of the law. In particular, he was sentenced at a time where Parliament had not enacted a law providing the circumstances in which a death sentence may be imposed in terms of section 48(2) of the Constitution of Zimbabwe.”

Before us, counsel for the applicant and the respondent are agreed, that, the application is properly before this Court.

I proceed now to consider each of the issues referred to this court for determination.

Whether the applicant's right to a fair hearing was violated

The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one as his task is to see that justice is not only done, but that it is seen to be done.

In this exercise, he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person, but, such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a pre-disposition on the part of the judge. The judge should neither lead nor cross-examine a witness.

The complaint by the applicant is that the trial court descended into the arena of conflict between himself and the State thereby violating his right to a fair trial as guaranteed by section 69(1) of the Constitution. The applicant further contends, that, the record of proceedings shows that the court was not impartial. It is argued further, that, the questioning of the applicant by the trial judge was such that, because of its frequency; length; timing; form; tone; content, it was apparent that the trial judge was hostile to the applicant.

The limits to which a judicial officer may question a witness or an accused person in a criminal trial were aptly set out by TROLLIP AJA in S v Rall 1982 (1) SA 828…, in the following terms:

“While it is difficult and undesirable to attempt to define precisely the limits within which such judicial questioning should be confined, it is possible, I think, to indicate some broad, well-known limitations, relevant here, that should generally be observed: see eg. S v Sigwala 1967 (4) SA 566 (A) at 568F-H.

1. According to the above quoted dictum of CURLEWIS JA, the judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy.

He should therefore so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie Van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.

The judge should consequently refrain from questioning any witness or the accused in such a way, that, because of its frequency, length, timing, form, tone, contents or otherwise conveys or is likely to convey the opposite impression: cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.

2. A judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. As LORD GREENE MR observed in Yull v Yull (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such questioning -

'He, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.'

See, too, the Jones case (supra) at 159C-E: or, as expressed by WESSELS JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E, the Judge may thereby deny himself -

'The full advantage usually enjoyed by the trial judge, who, as the person holding the scale between the contending parties, is able to determine objectively and dispassionately, from his position of relative detachment, the way the balance tilts.'

The quality of his views on the issues in the case, including those relating to the demeanour or credibility of the witnesses or the accused or the relative probabilities, may, in consequence, be seriously impaired: see eg R v Roopsingh 1956 (4) SA 509 (A) at 514-5: and, if he is sitting with Assessors, that may well adversely influence their deliberations and opinions on those issues.

3. A judge should also refrain from questioning a witness or the accused in such a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility. As LORD GREENE MR further observed in Yull's case supra at 189B-C:

'It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.'”

In this case, it was contended, on behalf of the applicant, that, the manner in which the learned judge in the trial conducted himself revealed hostility to the applicant.

In S v Mangezi (1) ZLR 272 (S), DUMBUTSHENA CJ commented as follows:

“It is not only when a judicial officer shows his bias that his leading or cross-examination of a witness may be condemned, it is also the fact of taking over the examination of the prosecution or defence witness that is not permissible.”

Further to the above, the applicant has contended that the intensity of questioning by the judge, whilst he was under cross-examination, was more extensive than that of the prosecutor. Whilst the prosecutor put a total of 144 questions to the applicant during his cross-examination, the questions from the judge, during the same cross examination, was a record 122. When the applicant's counsel sought to re-examine the applicant, the learned trial judge put to the applicant an additional 24 questions bringing the total number to 146.

However, it is not just the number of questions or their longevity that the applicant contests, it is also the content of the questions and the form that they took that is being complained of. Counsel for the applicant drew the attention of the court to the impugned exchanges between the court and the applicant. To illustrate the gravity of the complaint, I set out a few examples of the same.

The learned judge, after an answer to a question by the applicant, was heard to interject:

“No, no, no…, this does not make sense. What was happening to the money, you were making profits and that is why you were running the business, so what was happening to the money?”

Further on in the record, the learned judge, during the cross-examination of the applicant, also commented to an answer by the applicant in the following terms:

“And when she tells you that she was married and you did not believe her and you go there to find out if she is married, and you find the deceased coming out of the husband's house you say that is provocation? You wanted to go and find out whether she was married and you found out she was married and you still say it was provocation?”

As submitted by counsel for the applicant, the inescapable conclusion that emerges from the record is that the judge descended into the arena, and, as a consequence, he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had pre-judged the issues of the trial that was before him.

The remarks of HOLMES JA in S v Sigwala 1976 (4) SA 566 (AD) are apposite. At p568F-H, the learned jurist stated:

“The principle is clear. A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of witnesses, but, in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify some point in the interests of justice. Thereby, he is better able to form objective appraisals of the witnesses who appear before him, and he also avoids creating wrong impression in the minds of those present.”

Section 69(1) of the Constitution reads:

“Right to a Fair Hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

One of the fundamental principles of criminal law is that a person charged with a criminal offence is presumed to be innocent until the prosecution proves that he committed the offence with which he is charged. Thus, the State has an onus to establish every element of the offence.

The rules of natural justice require that whoever takes a decision should be impartial, having no personal interest in the outcome of the case and that a decision should not be taken until the person affected by it has had an opportunity to state his case.

A judicial officer has an obligation to ensure that a trial is conducted in a manner that is fair to all parties before him. To that end, the judicial officer is required to leave the dispute to the parties before him as far as is reasonably possible, and should interrupt only when it is necessary to clarify some point in the interests of justice.

In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.

His right to a fair hearing, as guaranteed under section 69(1) of the Constitution, was clearly violated.

In my view, the finding that the trial was not fair determines the application, and it becomes unnecessary to resolve the question relating to the constitutional validity of the sentence of death imposed upon the applicant.

One of the two issues referred to this court by the Supreme Court has been decided in favour of the applicant.

Both counsel are agreed, that, it would be in the interests of justice if the proceedings in the High Court were to be set aside as being inconsistent with section 69(1) the Constitution. Under such circumstances no benefit would ensue from a determination on the question of the constitutional validity of the sentence when the trial proceedings have been set aside.

It is further agreed between counsel that it would be in the interests of justice if the matter were to be remitted for trial de novo before a different judge.

Accordingly, it is declared that:

The applicant's right to a fair hearing, in accordance with section 69(1) of the Constitution, has been violated by the proceedings in Case No. HCB158/13.

Accordingly, the following order will issue:

IT IS ORDERED THAT:

1. The proceedings conducted under Case No. HCB158/13 be and are hereby set aside.

2. The matter be and is hereby remitted to the High Court in Bulawayo for trial de novo before a different judicial officer.

HMA03-16 : THE STATE vs JEALOUS NEMARINGA and PATRICK MARUFU
Ruled By: MAFUSIRE J

In terms of the Constitution, the emphasis is on the right of accused persons to personal liberty. Among other things, one should not be deprived of one's liberty without just cause (section 49(1)(b)). Once arrested and not released, a person is entitled to be brought to court within forty-eight hours or else he or ...

HB55-16 : FELODY MUNSAKA vs THE STATE
Ruled By: MATHONSI J

The applicant was only taken to court for initial remand on 31 January 2016 - eleven days after his arrest. It is not apparent from the papers whether authority for his detention beyond the requisite 48 hours was obtained. Ordinarily such extension would be for 96 hours before the accused person is brought to ...

HH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of ...

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate ...

Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No.8801-5/08. She was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.”

The applicant alleged, in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).

Two grounds were used to justify the request:

(i) The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention, prior to being brought to court on the charge, constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under section 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by section 15(1) of the Constitution.

The argument was that the uncontested behaviour by State security agents, in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody, rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody.

The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

(ii) The second ground was that the decisions made by the public prosecutor, to charge the applicant with the criminal offence and to bring the prosecution proceedings, were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.

It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.

The assumption was that section 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings, by public officials responsible for the initiation and conduct of criminal prosecution, and judicial officers, of information or evidence of the crime obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant, or a third party, by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful.

It also engaged the responsibility of the State in the violation of section 13(1) of the Constitution.

The effect of the argument was that the decision to charge the applicant with the criminal offence, and the institution of the prosecution of it, was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorized by section 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination.

The relief sought by the applicant was an order of permanent stay of the criminal prosecution.

THE ORDER OF THE COURT

On 28 September 2009, after reading documents filed of record and hearing argument by counsel for the applicant and for the respondent, the Court made the following order:

“The Court unanimously concludes that the State, through its agents, violated the applicant's constitutional rights protected under sections 13(1), 15(1) and 18(1) of the Constitution of Zimbabwe to the extent entitling the applicant to a permanent stay of criminal prosecution associated with the above violations.

Accordingly, it is ordered that the criminal prosecution against the applicant, arising from the facts set out in proceedings in the Magistrates Court Harare, in the case of the State v Manuel Chinanzvavana & Eight Ors, case number 8801-5/08, is stayed permanently.

The reasons for this order will be furnished in due course. The question of the costs of the application will be dealt with in the judgment.”

THE FACTS

The reasons for the order are now given.

The facts on which the determination of the question as to the contravention of the fundamental rights referred to in the order was based, were conveyed by oral testimony given by the applicant in the Magistrates Court. They were also conveyed through the affidavit deposed to by her on 12 January 2009 as well as by the arguments addressed to the Court by counsel on behalf of the applicant.

The truthfulness of the evidence conveyed by the means and methods referred to was not contested by the respondent.

The evidence is to the following effect:

On 3 December 2008, at 5am, the applicant was in bed at the family home in Norton. In the house were her son, nephew, and an employee. The son came to the bedroom and said there were people at the gate to the premises who wanted to talk to her. She woke up in a night dress only. The son came back saying he understood that the people were members of the police. Wearing a night dress only she walked to the kitchen where she met seven men and one woman in plain clothes. They said they were members of the police - but did not produce identity cards to show that they were police officers. Two of the men took positions on each side of the applicant. They each held her by the hand and led her to a Mazda Familia motor vehicle that was parked at the gate. In the car was another man.

The applicant asked her captors for permission to go back into the house and dress properly. She was, instead, pushed into the rear seat of the car. She was ordered to lie on the back seat between two men with her face on the lap of one of them. The man on whose lap she was forced to put her face had a gun across his thighs. Across the floor of the car in front of the rear seat there was another firearm. A jersey was used to blindfold her. She could hardly breathe as the jersey was pressing against her nose. When she complained of suffocation the tightness of the jersey was loosened a little bit.

She said she was terrified by what was happening to her.

The car was driven for about 40 minutes before it was stopped at a secret place. During the journey, the car radio had been switched on to produce a very loud sound. She was led out of the car into a room where she was told to sit on a chair. A woman gave her a dress which she said she reluctantly put on in place of the night dress.

After 30 minutes of their arrival at the secret place, the applicant was taken to another room and told to sit on the floor with legs stretched forward. When the blindfold was removed, six men and one woman started interrogating her. She was told to agree to become a State witness in the case under investigation or be killed. She was asked to give the name of an ex-police officer who visited her work place seeking financial assistance to go outside the country.

The questions sought to solicit from her information to the effect that she had used her organisation's funds to enable the ex-police officer to go outside the country and undergo military training in insurgency and terrorism.

The applicant said when she told the interrogators that she could not remember the name of the ex-police officer who had visited her office in 2008, one of the men took a piece of a hose-pipe about one metre long. Another man took a coiled piece of iron. The two men took turns to beat her with these objects several times on the soles of her feet using severe force. She said her assailants were quite zealous in what they were doing. She yelled in pain. When the first stretch of beatings ended, a woman brought her pants to wear.

The interrogation and beatings stopped in the afternoon of the first day at the secret place.

She was blindfolded and taken to a room in which she was kept in solitary confinement. The blindfold was removed each time she was in solitary confinement.

In the evening of the first day of her arrival at the secret place she was blindfolded and taken to a room. She was made to sit on a chair. When the blindfold was removed she saw the same people who had interrogated her earlier that day. When the interrogation commenced she was ordered to lift both legs and place the feet on the edge of a table.

She did as ordered.

Two men struck the soles of her feet repeatedly with severe force using the same objects used to beat her in the morning. She said her feet felt very sore. She could hardly walk the following day.

On 4 December 2008, the applicant was interrogated in the morning and afternoon without being beaten. In the evening she was told that as she was not co-operative, a decision had been made that she be surrendered to a merciless group of men and women. A blindfold was put around her head. She said she was gripped by fear. She thought she was going to be killed as she was pushed into a car and told to lie face down on the rear seat.

The motor vehicle was driven for a considerable time before being stopped at a secluded place. There was a sound of shuffling movement of people outside the car. She thought her captors were preparing to execute her. The car suddenly reversed and then drove on. The captors asked about her workplace. They alleged that she worked for Voice of America Studio. She said she told them she worked for Voice of the People. The car got back to the secret place at 1:00am.

In the morning of 5 December 2008, the applicant was taken to an interrogation room. When the blindfold was removed she saw Rodrick Takawira, who was her workmate, in the same room. One of the interrogators said to her:

“You have been lying all along, Rodrick has told us everything.”

Rodrick was taken out of the room.

One of the men brought gravel and put it on the floor to form mounds. She was told to pull up her dress above knee-level and kneel on the gravel. The interrogation began and continued with her in that position. She said she was injured on the knees and felt severe pain. Each time she tried to move the knees to relieve the pain the interrogators ordered her to move back into position.

She remained in that position for one hour.

The applicant said the interrogators wanted her to say that she had assisted Ricardo Hwasheni to go to Botswana for military training so as to carry out insurgent and terrorist activities in the country. She said she told the interrogators that she had a brief interaction with Ricardo when he visited their offices asking for assistance to leave the country. She said she told the interrogators that she referred Ricardo to Fidelis Mudimu who worked in the counselling services unit of the organisation.

On the fourth day, she was blindfolded and taken to a room where she was made to sit on a chair. When the blindfold was removed she saw nine men and one woman sitting at a conference table. One of the men had interrogated her before. They said they wanted to know more about Zimbabwe Peace Project and documents it had in its possession on human rights violations in the country. They asked about her interaction with Ricardo Hwasheni.

She said she told the interrogators that she had told Ricardo that her organisation did not give money to people who wanted to go out of the country. They asked her why she did not ask him which country he wanted to go to. When she said that was not her business, the interrogation became very aggressive.

The applicant said the men became visibly angry. One of them threatened to make her suffer. He said they were going to make her defecate.

Shaking with fear, and not sure whether she would come out of the room unhurt, she was given a paper and told to write a statement. The interrogators told her to write about the trip she had made to Botswana.

She did as told.

The next day she was told that there were some things the interrogators wanted deleted from the statement. She removed from the statement what the interrogators did not want and added what they said was to be added to the statement.

She said she wrote the statement in the manner her interrogators wanted before signing it.

According to her, it was not true that she had referred Ricardo Hwasheni to Fidelis Mudimu of the counselling unit. She said she did not make the statement freely and voluntarily. The statement contained what she was told to write by her captors because she believed that would make them release her.

On 14 December 2008, the applicant was taken to a conference room where there was a cameraman. The men and women who had interrogated her were present. The cameraman was introduced to her. She was told that she was to be video recorded whilst making a statement about how she met Ricardo Hwasheni. It was said a decision was to be made on the basis of the statement whether to prosecute her or turn her into a State witness.

After saying what the interrogators wanted her to say, she was blindfolded and taken to the room where she was kept in solitary confinement. She was held in solitary confinement, incommunicado, until 22 December 2008.

On 22 December 2008, the applicant was blindfolded and taken, by car, in the company of Rodrick Takawira, to a place where they were turned over to a police officer called Magwenzi. The police officer told them not to remove the blindfolds before those who brought them left. She said when the blindfold was removed she recognised the place where they were left by their captors as Braeside Police Station.

She was detained there.

The police later obtained, from a magistrate, a warrant authorising a search to be carried out at her house in Norton. She was taken to the house. For the first time she saw members of her family.

Whilst under the custody of her captors she had not been allowed to communicate with members of her family or her lawyer.

The search of the house did not yield anything relevant to the allegation that she recruited Ricardo Hwasheni to undergo military training for purposes of carrying out insurgency and terrorism in the country.

On 23 December 2008 she was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The facts on which the charge was based were extracted from the applicant by interrogation at different times during the period of detention extending from 3 to 14 December 2008.

On the basis of the information on which the charge was brought against the applicant, the public prosecutor instituted the criminal proceedings.

The applicant was then brought before the magistrate for remand pending trial.

The public prosecutor did not adduce evidence challenging what the applicant said happened to her from the time she was kidnapped to the time she appeared before the magistrate.

Meaning of section 15(1) of the Constitution

The first point taken, on behalf of the applicant, was that the treatment to which she was subjected by State security agents, prior to the charge being laid on her, constituted a contravention of section 15(1) of the Constitution.

Section 15(1) of the Constitution provides that:

“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

In this case, the only relevant concepts are “torture”; “inhuman treatment” and “degrading treatment”. They make up the three key elements of the protection of a person's dignity and physical integrity from the prohibited treatment at the hands of public officials.

Section 15(1) of the Constitution enshrines one of the most fundamental values in a democratic society. Chahal v United Kingdom [1996] 23 EHRR 413…,. It is an absolute prohibition. It is because of the importance of the values it protects that the rules by which the prohibition imposes the obligations on the State are peremptory in effect. The most conspicuous consequence of this quality is that the principle at issue cannot be derogated from by the State - even in a State of public emergency: see section 25 of the Constitution.

The provision is subject only to the exercise by Parliament, when properly constituted, of the power under section 52 of the Constitution to amend, add to, or repeal any provision of the Constitution upon strict compliance with the procedure prescribed for the purpose: Mike Campbell (Pvt) Ltd v Ministry of Lands 2008 (1) ZLR 17 (S).

It was in the exercise of the power conferred on it by section 52 of the Constitution, that Parliament, by means of Act No.30 of 1990 (Amendment No.11) and Act No.9 of 1993 (Amendment No.13) provided that six specific instances of treatment of individuals by the State shall not be held to be in contravention of section 15(1) of the Constitution. These are:

(i) Treatment to prevent the escape from custody of a person who has been lawfully detained (section 15(2));

(ii) Moderate corporal punishment inflicted upon a person under the age of eighteen years by his parent or guardian or by someone in loco parentis (section 15(3)(a));

(iii) Moderate corporal punishment inflicted on a male person under the age of eighteen years in execution of the judgment or order of a court (section 15(3)(b));

(iv) Execution of a sentence of death in the manner prescribed in section 315(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (section 15(4));

(v) Delay in the execution of a sentence of death (section 15(5)); and

(vi) Delay in the execution of any sentence imposed by a competent court (section 15(6)).

The qualities of absoluteness in the sense of being an unconditional prohibition and non-derogability articulate the notion that the prohibition is one of the most fundamental standards of a democratic society. They are also designed to ensure that the prohibition produces a deterrent effect in that it signals, in advance, to all public officials and private individuals, that it is an absolute value from which nobody must derogate.

The fact that torture, inhuman and degrading treatment is prohibited by a peremptory provision serves to render null and void any act authorising such conduct.

The prohibition protects the dignity and physical integrity of every person regardless of his or her conduct.
No exceptional circumstance, such as the seriousness of the crime the person is suspected of having committed, or the danger he or she is believed to pose to national security, can justify infliction of torture, or inhuman or degrading treatment.

There cannot be a value in our society over which there is so clear a consensus as the prohibition of torture, inhuman, and degrading treatment of a person in the custody of a public official.

That such a treatment should never form part of the techniques of investigation of crimes employed by law enforcement agents is a restatement of the principle that the law, which it is their duty to enforce, requires that only fair and humane treatment ought to be applied to a person under criminal investigation.

There is a distinction intended to be made, under section 15(1) of the Constitution, between torture on the one hand and inhuman or degrading treatment on the other.

The distinction between the notion of torture and the other two concepts lies principally in the intensity of physical or mental pain and suffering inflicted, in respect of torture, on the victim, intentionally, and for a specific purpose. Torture is an aggravated and deliberate form of inhuman or degrading treatment. What constitutes torture, or inhuman or degrading treatment depends on the circumstances of each case.

The definition of torture often adopted by courts, as a minimum standard by which a determination of the question whether torture has been committed or not, is that provided under Article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (hereinafter referred to as “the UN Convention on Torture”).

Article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) provides that:

“…, torture means, any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

It does not indicate pain or suffering arising only from, inherent in, or incidental to lawful sanction.”

The definition of torture, provided in Article (1)(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), is consistent with the interpretation by the Court in its case law of the concept as used in section 15(1) of the Constitution.

It is important to note that, in terms of the definition, the torture must be inflicted for the purpose of obtaining information or a confession. This is the mischief at which the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is aimed.

Inhuman treatment, is treatment which, when applied or inflicted on a person intentionally or with pre-meditation, causes, if not actual bodily injury, at least intense physical or mental suffering to the person subjected thereto and also leads to acute psychiatric disturbance during interrogation: Ireland v United Kingdom [1978] 2 EHRR 167…,.

Degrading treatment, is treatment which, when applied, to or inflicted on a person, humiliates or debases him or her showing a lack of respect for or diminishing his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking the person's moral and physical resistance.

The relevant notions in the definition of degrading treatment are those of humiliation and debasement. The suffering and humiliation involved must go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate or fair treatment: Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S)…,.

It follows, from the definition of the relevant concepts, that not every treatment which causes some discomfort to the person in detention violates section 15(1) of the Constitution; otherwise no one could be arrested, detained, and interrogated in the investigation of crime. The treatment must reach the minimum level of severity before it constitutes a breach of the absolute prohibition under the section.

The assessment of the minimum level of severity is relative.

The question whether or not the requisite threshold of breach of the fundamental right has been reached in a particular case is determined by the consideration of such factors as the nature and context of the treatment; manner and method of its execution, as well as the duration of the treatment; its physical and mental effects; and, in some cases, the age, sex and state of health of the victim: Ireland v United Kingdom [1978] 2 EHRR 167…,.; S v Ncube & Ors 1987 (2) ZLR 246 (S)…,.; Soering v United Kingdom [1989] 11 EHRR 439…,.; Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S)…,.

APPLICATION OF SECTION 15(1)

Applying the principles of the law on what constitutes a contravention of section 15(1) of the Constitution to the facts, the Court finds a violation by the State, through its agents, of the applicant's fundamental right not to be subjected to torture, or to inhuman or degrading treatment.

The reasons for the decision are these:

The repeated beatings on the soles of the applicant's feet with a piece of a hosepipe and a metal object using severe force, on each of the two occasions she was under interrogation, constitute torture.

Repeated beating of the soles of feet with a blunt instrument is a serious form of torture called “falanga”: AMRIS K, “Long Term Consequences of Falanga Torture”, Torture Vol.19 Number 1 IRCT 2009.

Forcing the applicant to kneel for a long time, on mounds of gravel, whilst being interrogated, falls within the meaning of torture.

The treatment to which she was subjected was premeditated.

The severe pain and suffering she was forced to endure was intentionally inflicted. It was in aid of the interrogation the purpose of which was the extraction, from her, of information on the assistance her organisation was suspected of having given to Ricardo Hwasheni to enable him to undergo military training outside the country.

The prolonged periods of solitary confinement, incommunicado, on the occasions she was not being interrogated, constitutes inhuman and degrading treatment; S v Masitere 1990 (2) ZLR 289 (S)…,.

It is important to note, however, that solitary confinement is not to be deemed to be contrary to the prohibition under section 15(1) of the Constitution. It must be in conjunction with other conditions, for example, prolongation and imposition on a person who has not yet been convicted of an offence. The severity of the specific measure, its duration, the objectives pursued by it, the cumulative effect of any further conditions imposed as well as the effects on the individual's physical and mental well-being, are all factors which have to be taken into account in the assessment of the question whether a specific instance of solitary confinement is in violation of section 15(1) of the Constitution.

It was inhuman treatment to keep the applicant blindfolded each time she was out of solitary confinement and not being interrogated.

The treatment was intentionally applied and caused the applicant mental suffering.

She was also subjected to inhuman and degrading treatment when she was blind-folded and driven, at night, to an undisclosed destination under threat of unspecified action.

The treatment was intended to induce in her fear and anguish. She said she feared for her life when the motor vehicle was stopped in the middle of the night at the place she could not see. She heard the sound of people shuffling about as if preparing to execute her.

The feelings of fear and anguish, generated in her by the treatment, had the intended effect of debasing her.

The purpose of the prohibition of acts violative of section 15(1) of the Constitution is to protect human dignity and physical integrity. Any recourse to physical force against a person in the custody of a public official, which is not rendered strictly necessary by his or her conduct, diminishes his or her dignity and implicates a violation of the prohibition.

FIRST GROUND

Effect of Pre-charge Abduction and Violation of Section 15(1) on Criminal Prosecution

The grounds on which the relief sought were premised on the court making a finding that the applicant was kidnapped from home and subjected to ill treatment in the form of torture, inhuman and degrading treatment by State security agents prior to being charged with the criminal offence by the public prosecutor.

The general effect of the contention advanced on the first ground was that the Court should not countenance a prosecution of an accused person for a criminal offence in circumstances in which he or she was kidnapped and subjected to torture, or inhuman or degrading treatment by public officials exercising executive authority prior to the charge being brought against him or her.

The argument was that the institution of criminal proceedings, in the circumstances, would be an abuse of court process.

The question for determination is whether ill-treatment, in breach of section 15(1) of the Constitution, prior to the charge being brought against the victim, taints the subsequent decisions to lay the charge and institute criminal prosecution against him or her regardless of the question whether the requirements of section 13(2)(e) of the Constitution have been complied with or not.

The decision of the Court on this point is that ill-treatment, per se, has no effect on the validity of the decisions to charge the victim with a criminal offence and institute prosecution proceedings against him or her.

It is the use of the fruits of ill-treatment which may affect the validity of the decisions depending on compliance or non-compliance, by the public prosecutor, with the requirements of permissible deprivation of personal liberty under section 13(2)(e) of the Constitution.

The reasons for the decision are these:

The requirements which a public prosecutor has to bear in mind and comply with to make a valid decision to charge an accused person with a criminal offence and institute a criminal prosecution on the charge are prescribed by section 13(1) of the Constitution.

The section recognises that every person has a fundamental right to personal liberty.

It then makes provision for the protection of the right against interference by the State by declaring that no person shall be deprived of personal liberty. Recognising the principle that the right to personal liberty is not an absolute right, the section goes on to specify cases listed as exceptions to the prohibition in which deprivation of personal liberty is permissible upon strict compliance with the prescribed requirements.

The requirements of permissible deprivation of personal liberty, in the case of a person suspected of crime, are in section 13(2)(e) of the Constitution. They constitute the standard by which the validity of the decision by the public prosecutor to charge the accused person with the criminal offence, and institute criminal proceedings, is to be measured.

The effect of prohibition of arbitrary deprivation of personal liberty is the promotion of lawful arrest or detention and prosecution of persons suspected of having committed crimes. It is the deprivation of personal liberty in connection with the criminal justice process that is relevant to the determination of the issues raised.

Once a measure, such as a criminal prosecution, is based on a decision to charge the accused person with the criminal offence which complies with the requirements of permissible deprivation of personal liberty it is a lawful measure. It cannot be a subject of an order of permanent stay on the ground that the accused person was kidnapped and subjected to torture, or inhuman or degrading treatment before the charge was brought against him or her. The ill-treatment to which the accused person would have been subjected would have taken place when he or she was in a state of lawful deprivation of personal liberty. It is usually inflicted after the person has been deprived of personal liberty by arrest and detention.

Section 13(1) of the Constitution provides that:

“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the cases specified in subsection (2).

(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorized by law –

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence.”

Section 13(4)(b) provides that:

“(4) Any person who is arrested or detained –

(a)…,.

(b) Upon reasonable suspicion of having committed, or being about to commit, a criminal offence;
and who is not released shall be brought, without undue delay, before a court; and, if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to the trial.”

Failure to comply with the requirements for a valid decision to charge the accused person with a criminal offence, and the institution of criminal prosecution proceedings against him or her, implicates a violation of the principle of legality or rule of law enshrined by section 18(1) of the Constitution.

The principle of legality requires that every decision or act of a public official which affects the rights or interests of an individual must be in accordance with an existing law otherwise it violates the rights of the individual concerned.

The requirements for permissible deprivation of personal liberty are part of the protection of that right. Compliance with the requirements is consistent with the principle of the rule of law. In that way, the public prosecutor and the Court are prevented from acting arbitrarily.

Section 18(1) provides that:

“(1) Subject to the provisions of this Constitution every person is entitled to the protection of the law.

“(1(a)) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law.”

The provisions of sections 13(1) and 15(1) of the Constitution protect two separate but related fundamental human rights. One right is not constitutive of the other. They are autonomous and under protective requirements peculiar to their nature and ambit. That means that the rights may be violated independently of each other.

The infliction of torture or inhuman or degrading treatment on an accused person affects his dignity and physical integrity. It does not in itself affect his or her criminal liability. The other right protects the individual from arbitrary arrest, detention and prosecution by agents of the State.

The same person may be a victim of ill-treatment by law enforcement agents whilst at the same time he or she is a villain having committed a criminal offence against another person. The applicability of a particular constitutional provision should turn on the reasons it was included in the Constitution and the evils it was designed to eliminate.

The existence of reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged and prosecuted is critical to the determination of the validity of the decisions to charge him or her with the criminal offence and institute criminal prosecution on the charge.

A charge is an official act by which notification is given by the competent authority of an allegation that the accused person has committed a criminal offence. In Attorney General v Blumears & Anor 1991 (1) ZLR 118 (S)…, GUBBAY CJ said:

“The standard for the deprivation of personal liberty, under section 13(2)(e) of the Constitution, are facts and circumstances sufficient to warrant a prudent man in suspecting that the accused person had committed, or was about to commit, a criminal offence. This standard represents a necessary accommodation between the individual's fundamental right to the protection of his personal liberty and the State's duty to control crime.”

It is the existence, or absence, of reasonable suspicion of the accused person having committed the criminal offence he or she is charged with which provides an answer to the question whether pre-charge ill treatment of an accused person had anything to do with the institution of the criminal prosecution.

The purpose of instituting criminal proceedings against an accused person, on reasonable suspicion of having committed the criminal offence with which he or she is charged, is to prove the circumstance of his or her guilt. It is also to give effect to the law which proscribes the conduct he or she is charged with as a crime.

The decision to charge the accused person with the criminal offence and prosecute the crime would be based on the evidence of acts he or she would be suspected of having committed before he or she was subjected to ill-treatment by law enforcement agents. The prosecution would be directly connected with the crime.

If each time an accused person was subjected to torture, or inhuman or degrading treatment prior to being charged with a criminal offence, the Court was obliged to order a permanent stay of the criminal prosecution, the requirements of permissible deprivation of personal liberty, which form the standard for the validity of the decision by the public prosecutor to institute the criminal proceedings against the accused person, would be reduced to mere words. It would implicate the principle of legality which requires the Court to uphold conduct which is in accordance with law.

The availability of the procedure under section 13(2)(e) of the Constitution means that where the criminal prosecution meets all the requirements of permissible deprivation of the accused person of liberty, it cannot be impugned notwithstanding the fact that the accused person was kidnapped and subjected to torture or inhuman or degrading treatment before the charge was brought against him or her.

Section 24(4) of the Constitution provides a remedy to the individual whose fundamental right has been violated.

No right to personal liberty would have been violated in relation to the accused person by the institution of criminal proceedings in the circumstances.

An illegal arrest or detention, without more, has never been viewed as a bar to subsequent prosecution for an offence the accused person is reasonably suspected, on untainted evidence, of having committed.

That does not mean that the accused person has no remedy for the pre-charge contravention of fundamental rights.

Kidnapping a person is a criminal offence.

Compensation, under section 13(5) of the Constitution, is payable to a person who is unlawfully arrested or detained. It is also an appropriate remedy for the redress of a contravention of a fundamental right available to the Court in the exercise of the wide discretionary power under section 24(4) of the Constitution.

A finding that the decision by a public prosecutor, to charge an accused person with a criminal offence, was based on reasonable suspicion of his or her having committed the offence effectively means that the criminal prosecution is lawful. It means that there is evidence on which proof of the commission of the acts defined as the crime with which the accused person is charged would be based at the trial. It also means that the wrongful conduct of ill-treating the accused person prior to being charged with the criminal offence had nothing to do with the decisions to institute and conduct the criminal prosecution; S v Harington 1988 (2) ZLR 344 (S); Blanchard & Ors v Minister of Justice 1999 (2) ZLR 24 (S); Mthembu v The State 2008 SCA 51…,.

As a matter of law and fact it is clear that where reasonable suspicion of the accused person having committed a criminal offence existed at the time the public prosecutor charged him or her with the offence in question and commenced criminal prosecution proceedings, the prosecution must be taken to have been properly instituted regardless of the fact that the accused person was subjected to torture, or inhuman or degrading treatment prior to the charge being brought against him or her. The charge, and prosecution, would be a product of the consideration, by the public prosecutor, of evidence on the conduct of alleged wrong doing by the accused person.

There is nothing in the Constitution which requires the Court to permit an accused person, reasonably suspected of a criminal offence and properly charged, to escape prosecution because he or she was subjected to torture or inhuman or degrading treatment prior to the charge being brought against him or her.

The Constitution does not guarantee protection against prosecution to an accused person reasonably suspected of having committed a criminal offence on account of having been subjected to torture, or inhuman or degrading treatment before the charge was laid on him or her.

Giving effect to the proposition advanced on behalf of the applicant would violate the constitutional principle of proportionality.

The principle requires that a fair balance be struck between the interests of the individual, in the protection of his or her fundamental rights and freedoms, and the interests of the public, in having those reasonably suspected of having committed criminal offences tried, and, if convicted, punished according to law.

Acting in the manner suggested by the applicant would mean that the purpose of criminal law is to protect the interests of a person suspected of crime at the expense of the victim and society.

That would be tantamount to providing a guarantee of immunity from prosecution to a person reasonably suspected of having committed a criminal offence in every case in which proof is produced that he or she was kidnapped and subjected to torture or inhuman or degrading treatment by agents of the State prior to being charged with a criminal offence. The victims of crime would be denied the right to the protection of the law.

Justice demands, however, that each man and woman be given what is due by his or her conduct.

It would also mean that one person who fell into the hands of law enforcement agents, who decided to break the law and maltreat him or her, would escape prosecution whilst another person who fell into the hands of law abiding law enforcement agents would not. That would be despite the fact that they were both reasonably suspected of having committed the criminal offences with which they were charged. Each would have known that his or her act was criminal. He or she would have committed the act before being placed in the custody of law enforcement agents.

Where there is no direct connection between the fruits of the torture or inhuman or degrading treatment to which the accused was subjected and the institution of the criminal prosecution, justification for an order of permanent stay of the criminal proceedings cannot be found in the pre-charge ill-treatment of the accused person. If the order were made it would be on the ground that there was no reasonable suspicion of the accused person having committed the offence with which he or she was charged.

In urging the first ground on the Court, counsel for the applicant relied on the decision of the South African Appellate Division in S v Ebrahim 1991 (2) SA 553 (A).

It is necessary to briefly look at the circumstances in which the decision was made to see whether the principles relied upon in that case are applicable to the facts of this case.

The appellant, a South African citizen by birth, fled to Swaziland whilst under a restriction order which confined him to Pinetown in Natal. In December 1986 he was forcibly abducted from his home in Mbabane by persons acting as agents of the South African State. He was taken to South Africa and handed over to the police. The police detained him in terms of security legislation. He was subsequently charged with treason, convicted, and sentenced to twenty years imprisonment with labour.

Prior to pleading to the charge, the appellant launched an application seeking an order that the court lacked jurisdiction to try him. The contention was that his abduction was in breach of international law and thus unlawful. The application was dismissed.

An appeal against the ruling succeeded.

STEYN JA carried out a review of Roman and Roman-Dutch authorities on the question whether the court lacked jurisdiction.

The learned Judge of Appeal came to the conclusion that, under both systems, the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area was considered to be tantamount to abduction. The court held that there was a rule at common law which limited a court's jurisdiction in criminal cases. That rule was to the effect that even if an offence was committed within the area of jurisdiction of the court it does not have jurisdiction to try the offender if he was abducted from another area of jurisdiction by agents of the State.

The head note to the judgment shows that the court continued, at p582C-E, as follows:

“Several fundamental legal principles are implicit in these rules (of the Roman-Dutch Law) namely, the preservation and promotion of human rights, good international relations, and sound administration of justice.

The individual must be protected against unlawful detention and against abduction, the boundaries of jurisdiction must not be violated, State sovereignty must be respected, the legal process must be fair towards those who are affected by it, and the misuse of the legal process must be avoided in order to protect and promote the dignity and integrity of the administration of justice.

The State is also bound thereby.

When the State itself is a party to a case, as for example in criminal cases, it must, as it were, come to court with 'clean hands'. When the State is itself involved in an abduction over territorial boundaries, as in the present case, its hands are not clean.

Rules such as those mentioned are evidence of sound legal development of high quality.”

The court, in S v Ebrahim 1991 (2) SA 553 (A), approved of the decision of the Federal Court of Appeal for the Second Circuit in United States v Toscanino 500F 2d 267 (1974).

The appellant, an Italian national, protested that agents of the United States government had abducted him from Uruguay and taken him to Brazil where he was held in custody and tortured. From there, he was conveyed, by aeroplane, to the United States. He was arrested and brought to trial on a charge of conspiring to import narcotics into the country.

The trial court had followed the prevailing judicial authorities on the interpretation of the principle of due process and its application to such cases. Judicial policy, at the time, was represented by the decisions of the United States Supreme Court in Ker v Illinois (1886) 119 US 436 and Frisbie v Collins (1952) 342 US 519. These decisions held that where an accused person was brought to court, on a proper charge, he or she was in the lawful custody of the court, and, as such, the court had no right to inquire into the means or method used to secure his or her presence before the court.

In holding that the concept of due process, under the Fourth Amendment of the United States Constitution, had been broadly interpreted, and, as such, justified an inquiry by a court into the circumstances in which an accused person had been brought before the court, the Federal Court of Appeal departed from the line of binding decisions of the Supreme Court of the United States.

In United States v Alvaren–Machain (1992) 119 Led. 2nd 441 that court re-affirmed its previous decisions by a majority thereby effectively over-ruling the decision in United States v Toscanino 500F 2d 267 (1974).

The reasoning in S v Ebrahim 1991 (2) SA 553 (A) was endorsed by the Court in S v Beahan 1991 (2) ZLR 98 (S) as having “the quality of being in accord with justice, fairness, and good sense.”

The principles have been applied in subsequent similar type situations in South Africa; in Mohammed v President of the Republic of South Africa & Ors 2001 (3) SA 893 (CC).

The same principles have been adopted and applied by the United Kingdom courts in similar cases of accused persons who had been forcibly abducted from territories of sovereign States by security agents of the receiving State, in some cases with the connivance of the prosecution agency: in R v Horseferry Road Magistrates (1994) 1AC 42; R v Mullen [2000] QB 520; and R v Loosely [2001] UKHL 53.

There is no doubt that the contention urged on the Court was animated by the principles enunciated in S v Ebrahim 1991 (2) SA 553 (A).

What is clear from the cases is that the principles in question provided a basis for an answer to a defence to the charge placed on the accused person to the effect that the court lacked jurisdiction to try him. The reason given in each of the cases was that the appearance of the accused person before the court was brought about by his forcible removal by agents of the receiving State from the territory of another sovereign State in breach of international law and the sovereignty of that State. The accused person would, at the time of the abduction, have been under the protection of the laws of the State in which he lived. He would have been outside the boundaries of the territorial jurisdiction of the court.

The cases merely recognised a long standing principle of international law, that abduction by one State of persons located within the territory of another violates the territorial sovereignty of the second State. The breach of international law, in the circumstances, is usually redressed by the return of the person abducted.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A), and those that followed it, were applied in the determination of the question of lack of jurisdiction because the courts accepted that the principles formed part of the meaning of the applicable international norms.
They do not provide a basis for challenging the validity of decisions by a public prosecutor to charge a person who is resident in the area of jurisdiction of the court with a criminal offence which it has jurisdiction to hear.

The principles are not an answer to the question whether a court, whose duty is to protect fundamental human rights, can decline jurisdiction in a case in which the accused person complains that his or her fundamental rights have been contravened by the institution of criminal prosecution proceedings after he had been kidnapped and subjected to torture, or inhuman or degrading treatment by agents of the State within the area of jurisdiction of the court.

They are not applicable to facts of a case the consideration of which has to take into account the existence, or absence, of reasonable suspicion, by the public prosecutor, of the accused person having committed the criminal offence with which he or she has been charged.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A) cannot be transposed and applied to facts of cases which do not raise for determination questions of breach of boundaries of criminal law jurisdiction.

Different principles apply in the determination of the issues raised by the facts of this case.

The cocktail of the principles of the relevant international law would have to have been violated by the receiving State before a criminal prosecution which followed could be said to be an abuse of legal process and a breach of the principles of protection and promotion of the dignity and integrity of the administration of justice. The cocktail comprises the principles of the preservation and promotion of the human right to personal liberty; the protection of individuals from unlawful detention and abduction; the protection of boundaries of territorial jurisdiction; and the protection of foreign State sovereignty.

Needless to say the last two principles would not form part of the law applicable to the facts of this case.

The analogy was inappropriate.

The forcible abduction of an accused person from foreign territory, by agents of the receiving State, has the effect of barring jurisdiction by the courts because it involves breach of an affront to the sovereignty of the refuge State. The act of arresting a person is an act of sovereignty. In such a case, that power would have been exercised by one State in the territory of another State.

Deriving from the cases of foreign abduction the proposition that in every case in which the accused person was subjected to torture, or inhuman, or degrading treatment before being charged with the crime the Court is obliged to order a permanent stay of the criminal prosecution was an ingenious argument which was unhelpful in the determination of the issues.

To discharge the constitutional mandate of enforcing or securing the enforcement of fundamental human rights and freedoms enshrined in the Constitution, the Court must exercise the power expressly conferred on it. Its duty is to determine the question whether the conduct of the State, forming the subject of complaint, contravenes the fundamental right or freedom sought to be enforced. It must come up with an affirmative or negative answer to that question after consideration of all the circumstances of the case.

It is unthinkable, in the circumstances, that the Court can restrict the exercise of the power and not inquire into the method by which the presence of an accused person before it was secured. It has to inquire if the allegation is that the conduct of the public officers involved in bringing the accused person violated his or her fundamental right.

The only occasion in which the Court can decline to exercise its powers, under section 24(4) of the Constitution, is if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person under other provisions of the Constitution or under any other law. What it cannot do is to decline to exercise the power to determine the question whether or not the fundamental right has been or is being or is likely to be contravened by the conduct of the State forming the subject of complaint properly brought before it.

The argument that a criminal prosecution following a pre-charge illegal arrest, detention and infliction of torture or inhuman or degrading treatment constituted abuse of process requiring a stay of proceedings would have to contend with the requirements of section13(2)(e) of the Constitution and show the fundamental right or freedom guaranteed by the Constitution that has been violated by the institution of the criminal prosecution in those circumstances.

It is not necessary to consider the argument in this case.

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

THE SECOND GROUNDEffect of Pre-charge Abduction and Violation of section 15(1) on Criminal ProsecutionThe second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction ...

THE SECOND GROUND

Effect of Pre-charge Abduction and Violation of section 15(1) on Criminal Prosecution

The second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction of torture, inhuman and degrading treatment.

In the raising of the issue of the wrongful conduct of public officers antecedent to the charge being brought against the accused person, and its connection with the prosecution proceedings instituted, was the suggestion that the responsibility of the State was engaged in occasioning a violation of the accused person's fundamental right to personal liberty.

In such a case, there had to be produced clear evidence of a direct connection between the antecedent breach of the fundamental right of the accused not to be subjected to torture, or inhuman or degrading treatment and the decision to charge and prosecute him or her. The institution of the criminal prosecution had to be shown to have been a direct consequence of the precedent wrongful conduct of the State. In other words, it had to be a product of the outrageous conduct of pre-charge ill-treatment of the accused person by law enforcement agents.

According to the applicant, the use, by the public prosecutor, of information obtained from her by infliction of the treatment prohibited by section 15(1) of the Constitution, is evidence of the existence of the requisite direct connection between antecedent violation of the fundamental right and the criminal prosecution. The criminal prosecution was an outgrowth or fruit of the torture, inhuman, and degrading treatment to which she was subjected.

The contention advanced on behalf of the applicant, on the second ground, was premised upon an interpretation of the provisions of section 15(1) of the Constitution which recognises that the prohibition contains a rule, by which it imposes an obligation on public officers charged with the responsibilities of initiating and conducting criminal prosecution, and judicial officers who preside over them, not to admit or use information or evidence obtained from an accused person or any third party by torture, or inhuman or degrading treatment.

Three issues arise in this context for determination. They are:

(i) Whether or not section 15(1) of the Constitution contains a rule prohibiting the admission or use, in any legal proceedings, of information or evidence obtained from an accused person or defendant, or any third party, by infliction of torture or inhuman or degrading treatment.

(ii) On whom does the burden of proving the essential elements of the rule lie and what is the standard for the discharge of the onus.

(iii) What effect does a finding that the onus has been discharged have on the question of the contravention of the fundamental rights of the accused person protected under sections 13(1); 15(1) and 18(1) of the Constitution.

Section 15(1) of the Constitution and Evidence Obtained by Torture

The Court takes the first point for determination.

Its decision on the point is that section 15(1) of the Constitution contains the rule by which it imposes on the State, through its agents, the obligation not to admit or use, in any legal proceedings, information or evidence obtained from an accused person or defendant, or any third party, by torture, or inhuman or degrading treatment.

The reasons for the decision are these:

Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) requires State parties to ensure “that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statement was made.”

Article 15 of the African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa and Article 16 of the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders in Havana, Cuba on 27 August to 7 September 1990, are important.

They recognise the existence of an obligation on the public prosecutors not to use or rely on information, or evidence, obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment to make decisions in the exercise of prosecutorial powers.

The relevance of the reference to the provisions of Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is not in the substance of the obligation imposed on State parties.

It is on the principle of interpretation involved.

Of importance to the determination of the question before the Court, is the recognition and acceptance of the principle that the rules in Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) and the United Nations Guidelines on the Role of Prosecutors are based on the interpretation of Article 5 of the Universal Declaration of Human Rights (1948).

Article 5 of the Universal Declaration of Human Rights (1948) prohibits, in absolute and non-derogable terms, infliction of torture, inhuman or degrading treatment or punishment on any person.

The African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa are based on the interpretation of the relevant provisions of the African Charter on Human and People's Rights (1981).

Article 5 of the African Charter on Human and People's Rights (1981) prohibits torture, inhuman and degrading treatment or punishment of any person.

The principle of interpretation which emerges is that the fact that a stand-alone rule has been used to denote the meaning of a primary provision does not prevent a court interpreting the meaning of a primary provision in similar language as covering the matters explicitly dealt with in the rule if the meaning of the primary provision has not been explained by a similar rule.

The principle under consideration was applied by the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439.

That Court held, on the interpretation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (“the ECHR”), that the prohibition by the Article was the basis for the rule against admission or use of information or evidence established to have been obtained or in respect to which there were substantial grounds for believing that it was obtained from the defendant, or a third party, by infliction of torture, inhuman or degrading treatment.

Considering the fact that Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (ECHR) did not spell out in specific terms, as did Article 3 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), that no State “shall extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture,” the European Court of Human Rights, at para 88 of the judgment in Soering v United Kingdom (1989) 11 EHRR 439, said:

“The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention.”

The obligation on the State, through its agents, not to admit or use, in criminal proceedings, information or evidence obtained from an accused person, or any third party, by infliction of torture, inhuman or degrading treatment is not explicitly set out by a separate provision in the Constitution. It would be contrary to the object and purpose of the prohibition, under section 15(1) of the Constitution, to allow admission or use of such information or evidence in any legal proceedings.

A proper interpretation of section 15(1) of the Constitution, which takes into account the purpose and broadness of the language underlying the importance of the fundamental value protected, compels the Court to conclude that the obligation on the State not to admit or use information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment in any legal proceedings attaches to the prohibition of such treatment by section 15(1) of the Constitution.

The obligation is inherent in the general terms of the section. It enjoys with the general prohibition the same qualities of being absolute and non-derogable.

The condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.

The obligation is an exception to the general rule of evidence enacted by section 48(1) of the Civil Evidence Act [Chapter 8:01]]. That rule is to the effect that evidence of violation of a fundamental right or freedom is admissible in legal proceedings unless its admission would bring the administration of justice into disrepute: Paradza v Chirwa & Ors NNO 2005 (2) ZLR 94 (S)…,.; A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…,.

At various stages of the whole process of proceedings by which the State deals with persons suspected of crime who are in the custody of public officers, the Constitution imposes duties for the protection of the fundamental rights of the suspect.

The primary duty is on the law enforcement agents not to abuse executive authority in the investigation of crime by torturing or treating suspects in an inhuman or degrading manner to extract information or confessions to be used against them in legal proceedings anticipated to follow the ill treatment.

If the duty fails to achieve its intended purpose at this stage, the law imposes the duty on public prosecutors not to admit or use information or evidence obtained from an accused person suspected of having committed a criminal offence, or any third party, by torture, inhuman or degrading treatment when making prosecutorial decisions.

If the duty fails at this stage, the law imposes the duty on judicial officers. Eventually, it lies with the Court to intervene, through the exercise of its original jurisdiction, to enforce or secure the enforcement of fundamental rights.

The rationale for the exclusionary rule is the protection of any person suspected of a crime, who is in the custody of a public officer, from torturous, or inhumane or debasing invasions of his or her dignity and physical integrity. Its object is to ensure that criminal prosecutions which are a direct consequence of the pre-trial illegality violative of fundamental rights of an accused person to freedom from torture, inhuman and degrading treatment are not used to give legitimacy to such conduct.

The rule has nothing to do with the fair determination of the guilt or innocence of the accused person.

Where there is independent evidence, which has been obtained lawfully, and on which reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged is founded, an order of permanent stay of a criminal prosecution is not justified.

The rule represents a device designed to deter disregard for constitutional prohibitions and give substance to constitutionally protected fundamental rights.

The exclusionary rule, as a remedy for the enforcement of the protection of fundamental rights under the Constitution, is not intended to immunise an accused person from criminal prosecution for any action he or she is reasonably suspected of having committed which is provable at the trial by independent evidence lawfully obtained.

Information or evidence obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment, if admitted or used in legal proceedings, would reduce section 15(1) of the Constitution to a mere form of words.

As JACKSON J put it, in the dissenting opinion in Korematsu v United States (1944) 323 US 214…, “once judicial approval is given to such conduct it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

In People (Attorney-General) v O'Brien (1965) IR 142 KINGSMILL MOORE J, of the Supreme Court of Ireland, said that:

“To countenance the use of evidence extracted or discovered by gross personal violence would…, involve the State in moral defilement.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from a report by MR ALVARO GIL-ROBLES, the Council of Europe Commissioner for Human Rights on his visit to the United Kingdom in November 2004 (8 June 2005 Comm. DH 2005) where he said:

“Torture is torture whoever does it; judicial proceedings are judicial proceedings, whatever their purpose - the former can never be admissible in the latter.”

Giving as a reason for holding, in S v Nkomo 1989 (3) ZLR 117 (S), that a court was under an obligation not to admit or use, in any proceedings, evidence of objects pointed out as part of confessions extracted from an accused person by torture McNALLY JA…, said:

“It does not seem to me that one can condemn torture while making use of the mute confession resulting from that torture, because the effect is to encourage torture.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from the work on “The United Nations Convention Against Torture” (1988) where BURGERS and DANELIUS suggest…, that:

“…, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture.”

Lastly, in Mthembu v The State 2008 SCA 51 the South African Supreme Court of Appeal ruled that the admission of evidence obtained through the use of torture would compromise the integrity of the judicial process and bring the administration of justice into disrepute.

The reason given is that torture is barbaric, illegal and inhuman and is one of the most serious of human rights violations. That court applied the exclusionary rule against the admission or use of information or evidence obtained by torture in legal proceedings as an exception to the general rule contained in section 35(5) of the Constitution of South Africa.

The section provides that:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render that trial unfair or otherwise be detrimental to the administration of justice.”

It is clear that the rationale for the exclusionary rule against the admission or use of information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment, as contained in section 15(1) of the Constitution, is founded on the absolute obligation imposed on the State.

It is also founded on the revulsion which attaches to the source of such information or evidence, coupled with its offensiveness to civilized values, and its degrading effect on the administration of justice.

The rule applies even when the evidence is reliable and necessary to secure the conviction of an accused person facing serious charges.

The reliability, or probative value, of the information or evidence is irrelevant because its admissibility is prohibited in absolute and peremptory terms.

It is vital, in a society governed by the rule of law, that persons in the custody of public officials should not be subjected to ill-treatment of the level of severity prohibited by section 15(1) of the Constitution.

ONUS

The Court takes the second point for determination.

Its decision is that the onus is on the applicant to establish, on a balance of probabilities, that the information or evidence of the crime used by the public prosecutor to charge her with the criminal offence and prosecute her for it was obtained by the infliction of torture, inhuman and degrading treatment at the hands of the State security agents prior to the charge being brought against her.

The reason for the decision is that it is the accused person, or defendant, who has to raise the question of contravention of fundamental rights by the State. It is he or she who would have knowledge of what was done to him or her and what information was extracted as a result of the ill-treatment. It was then for the State to prove, beyond reasonable doubt, that the decision to charge the applicant with, and prosecute the criminal offence, was taken upon consideration of independent information or evidence of the crime lawfully obtained and on which reasonable suspicion of her having committed the criminal offence was based.

The applicant discharged the onus on her.

She established, by oral and affidavit evidence, that in bringing the charge of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] against her, and initiating the prosecution proceedings, the public prosecutor relied solely on information on the commission of the alleged criminal acts obtained from her, and a third party, by torture, inhuman and degrading treatment.

There was an inextricable link between the ill-treatment and the criminal prosecution.

No evidence was placed before the Court, by the respondent, to show that the decisions by the public prosecutor were based on independent evidence of the crime which was lawfully obtained.

It is important to emphasize the fact that the ordering of the exclusion of evidence obtained by torture or inhuman or degrading treatment assumes, implicitly, that the remedy does not extend to barring the prosecution based on evidence wholly untainted by the misconduct of the law enforcement agents.

It is also important to point out that where the allegations by the accused are contested by the State, it is the court before which the allegations are first made, or the trial court, which must hear the parties and decide question of facts.

Effect on Violation of Exclusionary Rule

Finally, the Court takes the third point for determination.

Its decision on this point is that, the effect of the finding that the public prosecutor relied on information or evidence of the commission of the alleged criminal acts obtained from the applicant by torture, inhuman and degrading treatment in deciding to charge her with, and prosecute her for the criminal offence, is that there was a breach of sections 15(1) and 13(1) of the Constitution.

The breach of section 13(1) of the Constitution lies not in the use of torture, inhuman and degrading treatment to obtain the information or evidence of the crime from the applicant. That is a breach of section 15(1) of the Constitution.

The violation of section 13(1) of the Constitution lies in the use of, or reliance, by the public prosecutor, on the information or evidence obtained by torture, inhuman and degrading treatment for the purposes of making the prosecutorial decisions.

Had the public prosecutor rejected the information or evidence of the crime obtained from the applicant by torture, inhuman and degrading treatment, there would have been a violation of section 15(1) of the Constitution but no breach of section13(1) - provided the criminal prosecution was supported by a reasonable suspicion of her having committed the criminal offence with which she was charged.

The reason is that the criminal prosecution would be a proceeding for the proof, beyond reasonable doubt, of the guilt of the accused person of the crime with which he or she is charged, based on no more or less evidence of the criminal acts than was available at the time of their commission.

The criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution.

The absolute and non-derogable fundamental right of the applicant, not to have information or evidence of the crime obtained from her, or any third party, by torture, or inhuman or degrading treatment used or relied upon by the public prosecutor in making the prosecutorial decisions to charge her with the criminal offence, and institute the criminal prosecution, was contravened.

There was also a violation of the applicant's fundamental right to the protection of the law guaranteed by section 18(1) of the Constitution.

By acting in the manner he did, the public prosecutor failed to act in accordance with the requirements of the protection of the fundamental rights prescribed by sections 15(1) and 13(1) of the Constitution.

He acted in breach of the principle of the rule of law.

It is clear from the facts that, at the time the State security agents kidnapped the applicant from home and later detained her at the secret place, they did not have reasonable suspicion of her having committed the criminal offence she was later charged with. They then used torture, inhuman and degrading treatment, during interrogation, to extract from her information or evidence on which they expected that the public prosecutor would act as a basis of a reasonable suspicion of her having committed the criminal offence with which she was then charged.

The effect of the operation of the exclusionary rule is that the whole conduct of the State security agents, in kidnapping and detaining the applicant, and subjecting her to torture, inhuman and degrading treatment, was a violation of the fundamental rights guaranteed to her by section 13(1), 15(1) and 18(1) of the Constitution.

It also shows that the criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution thereby engaging the responsibility of the State in the contravention of sections 13(1) and 18(1) of the Constitution.

In so far as the applicant suggested that she should not be prosecuted because her presence in court followed her unlawful arrest or kidnapping and ill-treatment by State security agents, she could not claim immunity from prosecution on those grounds alone because her body is not a suppressible fruit and the illegality of her detention and treatment could not deprive the Government of the opportunity to prosecute her and prove her guilt on independent evidence wholly untainted by the misconduct of law enforcement agents; United States v Crews 445 US 463 (1980)…,; Key v Attorney General & Anor 1996 (4) SA 187 (CC)…,.

COSTS

The Court takes the question of costs for determination.

Its decision on this point is that there be no order as to costs. The reasons for the decision are these:

Section 24(4) of the Constitution gives the Court a wide discretion as to the choice of a practical and effective remedy which can appropriately redress a violation of a fundamental human right or freedom.

An order of permanent stay of the criminal prosecution was considered by the Court to be the appropriate remedy for the redress of the violation of the applicant's fundamental rights. The violation would otherwise have continued: In re Mlambo 1991 (2) ZLR 339 (S)…,.

In selecting an appropriate remedy under the Constitution, the primary concern of the Court must be to apply the measures that will best vindicate the values expressed in the Constitution and to provide the form of remedy to those whose rights have been violated that best achieves that objective. This flows from the Court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of the country: Osborne v Canada (1991) 82DLR (4th) 321…,.

Costs are in the discretion of the Court.

It is permissible, in cases of this nature, to order that costs incurred should follow the event: Bull v Attorney-General of Zimbabwe 1987 (1) ZLR 35 (S).

Nonetheless, a constitutional question was raised with regard to which the answer was not self-evident.

The question whether section 15(1) of the Constitution imposes an absolute and non-derogable obligation on the State, through its agents, not to admit or use information or evidence of the crime obtained from an accused person, or defendant, by infliction on him or her, or any third party, of torture, or inhuman or degrading treatment had not been raised and exhaustively determined by the Court before.

The opportunity arose for the Court to clarify the law on the fundamental right of a person accused of a crime not to have information, or evidence, obtained from him or her by infliction of torture, or inhuman or degrading treatment admitted or used against him or her in any legal proceedings.

The legal question had to be clarified not only for the benefit of accused persons in similar circumstances. It has been clarified for the benefit of public prosecutors and judicial officers.

The victor is therefore not the applicant but the administration of justice.

The respondent did not challenge the correctness of the factual basis of the constitutional question. He properly took the view that the resolution of the legal question was in the public interest. The Court considers that the respondent should not be penalised by an order of costs.

There will be no order as to costs.

SSC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE
Ruled By: CHIDYAUSIKUCJ

In this Chamber application, the applicant seeks an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of section 24(1) of the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”).In other words, this is an application ...

In other words, this is an application for the hearing of the Court application on an urgent basis.

Both counsel agree the matter is urgent.

I accept that the matter is urgent. I, however, do not accept that the matter should be set down because the Constitutional Court application is fatally defective in that it does not comply with section 24 of the Constitution.

Section 24 of the Constitution is peremptory.

This Court has no discretion to condone a departure from compliance with section 24 of the Constitution. Consequently, failure to comply with the procedure set out in section 24 of the Constitution is fatal to any Court application made in terms thereof.

Although the Court application does not, as it should, state explicitly that it is being made in terms of section 24(1) of the Constitution, it is quite clear from the papers that it is being made in terms of that subsection.

In my view, the applicant cannot proceed in terms of section 24(1) of the Constitution.

The Court application arises from proceedings in the Magistrate's Court and the applicant should have proceeded in terms of section 24(2) of the Constitution. Put differently, the Court application should have come to the Supreme Court by way of referral in terms of section 24(2) as opposed to a direct application in terms of section 24(1) of the Constitution.

The relevant part of section 24 of the Constitution provides as follows:

“24 Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being, or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.

(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall refer the question to the Supreme Court, unless, in his opinion, the raising of the question is merely frivolous or vexatious.

(3) Where, in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).

(4) The Supreme Court shall have original jurisdiction -

(a) To hear and determine any application made by any person pursuant to subsection (1) or to determine without a hearing any such application which, in its opinion, is merely frivolous or vexatious; and

(b) To determine any question arising in the case of any person which is referred to it pursuant to subsection (2); and may make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights:

Provided that the Supreme Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are/or have been available to the person concerned under other provisions of this Constitution or under any other law.”

Thus, section 24 of the Constitution is very explicit in the following two respects -

(1) A party alleging violation of a guaranteed Constitutional right can approach the Supreme Court directly in terms of section 24(1); and

(2) If the alleged violation of the guaranteed right has arisen in any proceedings in the High Court or in any court subordinate to the High Court, the Supreme Court can only adjudicate on the matter upon referral by the lower court in terms of section 24(2).

Thus, when a matter is before the High Court, or any court subordinate to the High Court, such as the Magistrate's Court as in this case, the question of the contravention of the guaranteed right should be referred to the Supreme Court by the court mero motu or at the instance of any one of the parties to the proceedings. That Constitutional question cannot be brought to the Supreme Court by way of an application in terms of section 24(1) of the Constitution.

Section 24(3) of the Constitution expressly prohibits that.

If the lower court fails to act mero motu, or refuses, upon application, to refer the matter to the Supreme Court for reasons other than those permitted under section 24 of the Constitution, an applicant is then entitled to approach the Supreme Court in terms of section 24(1) of the Constitution: see Martin v Attorney-General 1993 (1) ZLR 153 (S).

Section 24(3) of the Constitution specifically prohibits the making of an application in terms of section 24(1) in respect of matters arising in any proceedings in the High Court or in any court subordinate to the High Court.

This Court has drawn the attention of legal practitioners to this provision in a number of cases.

MALABA JA…, dealt with this issue in some detail in the case of Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05. The learned JUDGE OF APPEAL had this to say at pp10-12 of the cyclostyled judgment:

“There are, however, two separate procedures prescribed in sections 24(1) and 24(2) of the Constitution by which redress of a contravention of the Declaration of Rights may be sought from the Supreme Court.

In this case, the question is whether the applicant ought to have used the procedure prescribed in terms of section 24(2) for the enforcement of the protection of the rights he claimed were contravened in relation to him.

In Mandirwhe v Minister of State 1986 (1) ZLR 1 BARON JA said that compliance with the procedure prescribed in section 24(2) of the Constitution was mandatory where there was litigation in progress and the determination of the question as to the contravention of the Declaration of Rights by the Supreme Court had a bearing on the decision by the High Court or the court subordinate to it on the matter in dispute in the proceedings in that court.

The learned JUDGE OF APPEAL said at 7F-8D:

'The purpose of section 24 is to provide, in a proper case, speedy access to the final court in the land. The issue will always be whether there has been an infringement of an individual's fundamental rights or freedoms, and frequently will involve the liberty of the individual; constitutional issues of this kind usually find their way to this Court, but a favourable judgment obtained at the conclusion of the normal, and sometimes very lengthy, judicial process could well be of little value. And, even where speed is not of the essence, there are obvious advantages to the litigants and to the public to have an important constitutional issue decided directly by the Appellate Division [now the Supreme Court] without protracted litigation.

Subsection (1) contemplates the situation in which it is clear from the outset that the existence of a remedy depends on whether there has been (or is likely to be) a contravention of the Declaration of Rights, when the person alleging to be aggrieved is given the right to go direct to the Appellate Division.

Subsection (2) deals with a different situation; it contemplates that proceedings have been commenced in the General Division [now the High Court] or in a subordinate court in circumstances in which it was not anticipated that the question of a contravention of the Declaration of Rights would necessarily arise, since otherwise one expects subsection (1) to be invoked. The question having arisen, the subsection provides a speedy procedure for the determination, by the Appellate Division, of, in effect, a constitutional point of law without the necessity first to conclude the trial in the court of first instance and to come to this Court by way of appeal.

When the question is referred to this Court, the proceedings are merely interrupted; this Court answers the question but the matter must be concluded in the court a quo. The subsection does not authorise the proceedings to be transferred to this Court.'

Section 24(2) of the Constitution only applies when there is a question arising in the proceedings in the High Court or in the court subordinate to the High Court.”

The learned JUDGE OF APPEAL went on to explain, in some detail, what constitutes a question arising in proceedings. The following is what he said at pp12-13 of the judgment:

“The question is whether there were proceedings in the High Court at the time that (the) question as to a contravention of the Declaration of Rights arose.

My view of the facts is that I must answer the question in the affirmative.

The words 'in any proceedings in the High Court' mean proceedings that have come to or have been instituted in the High Court. They are proceedings that have found existence in the High Court, in the sense, that, that court has been called upon, through a method prescribed by law, to exercise the judicial functions of the State over the matter in dispute between the parties and it is in control of the conduct and progress of the proceedings.

The word 'proceedings' has a wider meaning in section 24(2) of the Constitution than 'goings-on' in court. There are no proceedings without an action or case. Proceedings ordinarily progress in steps. The word is, therefore, a general term, referring to the action or application itself and the formal and significant steps taken by the parties in compliance with procedures laid down by the law for the purpose of arriving at a final judgment on the matter in dispute.

There are proceedings in being in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute or withdrawal of the action or application: see Re Appleton French & Scrafton Ltd [1905] 1 Ch.D 749 at 753; Mundy v the Butterley Co Ltd [1932] 2 Ch.D 227 at 233; Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 219.

There is, therefore, no need to limit the very general words of section 24(2) of the Constitution and say that the question as to the contravention of the Declaration of Rights arises only when the court is actually sitting.

The words 'if in any proceedings in the High Court any question arises as to the contravention of the Declaration of Rights' imply that proceedings may take place in the High Court without any such question arising.”

The judgment in Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 was followed in Dr Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor SC11-08, where, after referring to the above passage of MALABA JA, I had this to say…,:

“Thus, it would appear, from Tsvangirai's case supra, that, once proceedings are commenced in the High Court or any subordinate court, and a constitutional point arises from the pleadings or circumstances of the case, the constitutional point has arisen from proceedings in that court.”

The facts of this case are that the applicant was placed on remand by the fifth respondent. The Court takes judicial notice of what constitutes a remand.

It is the first formal procedure by a court to commence a criminal trial. There has to be a sufficient legal basis for a court to place an accused person on remand.

The applicant contends, that, there was no legal basis to place her on remand.

She makes the following averment in paragraph 6 of the founding affidavit:

“(The fifth) respondent is Mishrod Guvamombe, the Provincial Magistrate at Rotten Row Magistrates Court who is cited herein in his official capacity as the magistrate who I believe unlawfully purported to remand me in custody without considering the unlawful circumstances that led to my appearance before him. His address for service is care of Rotten Row Magistrates Court, Harare.”

The applicant cites the fifth respondent in his official capacity as the person who presided in proceedings as a result of which the applicant was remanded in custody. The applicant contends that remanding her in custody was unlawful and violated her constitutionally guaranteed right.

On these facts, clearly, the question of the alleged violation of the applicant's constitutional guaranteed rights, in particular the allegation of unlawful remand, arises from the proceedings in the Magistrate's Court before the fifth respondent.

The argument by the applicant's counsel, that the issue of the contravention of the Declaration of Rights was not specifically raised during those proceedings is simply untenable. Indeed, a similar argument was raised in Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 and was dismissed by this Court.

Thus, quite clearly, the Constitutional application should have been brought to this court by way of referral in terms of section 24(2) of the Constitution and failure to do so is fatal to the application.

As I have already stated, the parties are in agreement that this matter is urgent. Counsel for the respondents had indicated, that, while he accepted that the matter was urgent, he had intended to raise the issue of non-compliance with section 24 of the Constitution at the actual hearing of the Constitutional Court application.

The applicant's counsel indicated that they would prefer the matter to be set down before the full Constitutional Court and the issue of the non-compliance with section 24 of the Constitution be determined then.

In my view, following that course would not be in the best interest of the applicant as that would lead to further unnecessary delay in the determination of the issues that she raises.

The previous decisions of this Court on this point are very clear and setting this application down before a full Constitutional Court is an exercise in futility.

Justice will not be served by following a road that leads nowhere.

Indeed, I would have considered setting down the matter in the Constitutional Court for determination of the issue if the applicant's counsel had wished to argue that both Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 and Dr Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor SC11-08 were wrongly decided.

However, that is not his stance.

The applicant's counsel admitted that he has not read the above judgments. He did not ask for an opportunity to familiarise himself with those judgments and then reconsider his position.

Given this attitude, setting this matter down for argument before the full Constitutional Court will be, as I have already stated, an exercise in futility and will cause a further delay in the finalisation of the applicant's search for a determination by this Court.

If the applicant wishes this matter to be determined by the Supreme Court she should proceed in terms of section 24(2) and not section 24(1) of the Constitution.

It is a matter of regret that an opportunity to determine this application on an urgent basis has been squandered by the crass incompetence and sheer ineptitude of the applicant's legal practitioners, who do not appear to have taken the trouble to peruse the provisions of section 24 of the Constitution before committing pen to paper and drafted this application.

In my view, the best way forward is to dismiss this Chamber application, and, hopefully, the applicant's legal practitioners will familiarise themselves with the provisions of section 24 of the Constitution and the judgments of this Court before advising the applicant on the best course to follow....,.

The Chamber application is dismissed.

The applicant should comply with the provisions of section 24 of the Constitution before this matter can be set down as a Constitutional application.

There will be no order as to costs.

HHH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt. MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

In this application, the applicants seek an order -

(a) Declaring their arrest and continued detention unlawful;

(b) Requiring the respondents and all those calling through them or acting on their behalf to permit the applicants access to medical treatment at medical centres of their choice;

(c) Directing the respondents or anyone calling through them or acting on their behalf to produce the applicants before a High Court Judge in Chambers within two hours of the order being made, or, alternatively, take the applicants for a remand at the Magistrates Court at/or before 12h00 on 11th November 2008 failing which the respondents and all those calling through them or on their behalf shall forthwith release all the applicants from custody and that thereafter no Magistrates Court should entertain the matter for remand purposes save for trial purposes, applicants having been duly summoned.

They also seek an order for costs on a higher scale.

The application was placed before me through the Chamber Book as an urgent application on 6 November 2008. After perusing the papers, I directed that the applicant serves the application on the respondents as well as on the office of the Attorney-General.

I considered that the matter merited speedy consideration and that the Rules of Court relating to notice be dispensed with in the interests of the rights of the applicants. The matter was to be set down for hearing the next day at 10h00.

The application is premised on an affidavit deposed to by the applicants' counsel, Mr Andrew Mukoni. He makes the following averments:

The applicants are Fidelis Chiramba, Pieta Kaseke, Terry Musona, Fanuel Tembo, Mrs Mutemagau, Mr Manyemwe, Lloyd Tarumbwa and others. The third and fourth respondents are police officers responsible for the arrest and detention of the applicants. The police officers operate under the direction and control of the first and second respondents.

On 3rd November 2008, Mr Makoni was instructed to represent all the applicants. From the information he gathered, the applicants were being dealt with by either CID Homicide Section or CID Law and Order Section at Harare Central Police Station although they had been arrested in places around Banket and Chinhoyi.

Upon visiting CID Law and Order section, the Officer-in-Charge of that section professed ignorance of the matter. When he then visited Homicide section, he learnt that the third respondent was handling the matter. Upon requesting audience with him, the latter was said to be too busy to see the applicants' counsel. He also gathered information concerning the detention of the applicants at various police stations around Harare.

A visit to these stations, however, indicated that the applicants had been released into the custody of the fourth respondent.

He concluded that the police were detaining the applicants illegally for the reason that the 48 hour period permitted at law had long expired. He also believed that the police were holding the applicants in communicado. He feared that the applicants were being subjected to torture, ill-treatment or other inhuman and degrading treatment as access to legal practitioners was being denied. He believed that police had no legal basis for detaining the applicants hence they had failed to take the applicants to court within 48 hours as required of them by law. He believed that the applicants were being subjected to such ill treatment for the purposes of unlawfully extracting from them confessions without legal representation.

He therefore prayed that the applicants be produced at court or be released.

At the hearing, counsel for the respondents indicated that the police did not have the applicants in their custody, and, therefore, were unable to release the applicants. He pointed out that the police deny arresting the applicants as no evidence of such an arrest had been produced by the applicants.

In view of the attitude of the respondents, the matter was postponed to 11 November 2008 to allow the applicants to file further affidavits to address the following questions:

(a) Where are the applicants detained?

(b) What are their detention book numbers, if any?

(c) Under what circumstances were they detained?

(d) On whose authority are they detained?

(e) What are the applicants full and further particulars?

(f) What other persons were arrested and detained under similar circumstances as the present applicants?

(g) What is the registration number or numbers of the vehicles which conveyed the applicants if any?; and

(h) Whether any criminal charges were preferred against any of the detainees.

The respondents, particularly the third and fourth respondents, for their part, were directed to file affidavits answering the allegations raised in the founding as well as the supplementary affidavit.

On 10 November 2008, Mr Makoni filed his supplementary affidavit as directed by the Court. The respondents did not file any affidavit despite being directed to do so by the Court.

In his supplementary affidavit, he makes the following averments at paragraphs 5 and 6.

"5. After the postponement of the matter, I drove to Mabelreign police station in the company of the defence team comprising of myself, Alec Muchadehama and Charles Kwaramba. We gathered the following facts.

Pieta Kaseke, the 7th applicant, was detained at the police station under Detention Book Number I55/0S on the 2nd November 2008. She was booked in by Detective Assistant Inspector Chibaya for Chief Superintendent Makedenge of CID Homicide. She resides at 167 Munashe Street, Kuwadzana Township, Banket. She was released by Detective Sergeant Muuya of CID Homicide on behalf of Chief Superintendent Makedenge. We then visited Avondale police station and discovered that Pieta Kaseke had been detained at the station prior to her detention at Mabelreign police station, She was detained under DB1122/08. She was detained by Detective Assistant Inspector Phiri for Makedenge on 1st November 2008 and booked out on 2nd November 2008. Her whereabouts are still unknown. We believe she is still in the hands of the police with her minor child.

6. At Avondale police station we also gathered that the 1st applicant was also at some stage detained there. He was detained at the station on the 3rd of November 2008 under detention number DB1126/08 and released by Detective Chief Inspector Paradza and Detective Inspector Chibata for C/S Makedenge on the 4th November 2008. His whereabouts are still unknown. We have reason to believe he is still in police custody.

Prior to this detention, he was detained at Rhodesville police station. His detention number at Rhodesville was DB1886/08. He was in these cells on the 31st October 2008 from 09h00 to 15h00 when he was booked out by D/C Muuya of CID Homicide allegedly for CID Law and Order. 1st applicant was again detained at Highlands police station and Borrowdale police station before he was taken to Avondale police station. We failed to get the detention numbers at these two police stations as the police were less co-operative. 1st applicant resides at Number 825 Kuwadzana Township, Banket. His ID number is [number]."

He recites that he ascertained that the third applicant was once detained at Rhodesville and gives his particulars. The third applicant was detained under DB1892/08 at Rhodesville and released by Detective Sergeant Mavunga of CID Homicide on 4th November 2008.

In respect of the rest of the applicants, Mr Makoni says he was unable to obtain any information regarding where they were detained after when they were attested or where they currently were detained. This was in spite of his visiting various police stations around the city like Avondale, Borrowdale, Braeside, Highlands, Mabelreign, Matapi, Mb?r?, Marlborough and Rhodesville. Despite diligent inquiry he was unable to ascertain full particulars of certain of the detainees e.g. the fifth applicant's. He was, however, able to confirm that the applicants were being accused of contravening section 24 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] i.e. training insurgents, bandits, saboteurs and terrorists. He averred that after his discussion on 4th November 2008 with Detective Chief Inspector Paradza, he was under no illusion that all the detainees were held by the police and that Chief Superintendent Makedenge was handling the case.

Chief Inspector Paradza referred all questions to Chief Superintendent Makedenge who refused to entertain counsel.

A further supplementary affidavit was obtained from the first applicant's son, one Ponsiano Chiramba. According to him, police came into their neighbourhood on 30 October 2008 and arrested Larry Gaka, the eighth applicant. No-one had the presence of mind to record the police vehicle registration number.

This occurred at night.

The following day, 31st October 2008, around 03h00, police struck again and arrested his father together with the 2nd and 3rd applicants. His father is the losing senatorial candidate for Zvimba in the March 2008 harmonised elections. He believes the arrests were politically motivated as all those arrested are MDC activists. Police took away his father's fully licensed 303 rifle. His father, the first applicant, is a 71 year old retired police officer.

Ponsiano Chiramba brought food for this father at Rhodesville, and, later, Highlands police stations; but, when he attempted to do the same at Borrowdale he was met with resistance. Police refused to disclose his father's whereabouts saying only that they were under instructions not to divulge such information.

The ninth, tenth, and eleventh applicants were arrested whilst driving from MDC Headquarters in Harare. They are resident in Banket, Their motor vehicle, and themselves, have not been seen since their arrest.

Ponsiano Chiramba was surprised to hear that the police deny any knowledge of the whereabouts of the applicants.

Faced with this evidence, counsel for the respondents reconsidered his position and advised the court, at the resumed hearing on 11th November 2008, that, he was no longer opposed to the granting of the final order sought by the applicants were seeking.

The change in his attitude is not only legally correct but commendable. I say this for the following reasons:

The Republic of Zimbabwe is a signatory to the International Covenant on Civil and Political Rights, 1966 (ICCPR). It acceded to this international treaty. As a State Party to this international human rights treaty, the Republic of Zimbabwe is bound by the international treaty obligations flowing from the treaty.

It may well be necessary to recite the relevant provisions of the International Covenant on Civil and Political Rights, 1966 (ICCPR) here.

Article 9 of the International Covenant on Civil and Political Rights, 1966, provides thus:

“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty, by arrest or detention, shall be entitled to take proceedings before a court, in order that court may decide, without delay, on the lawfulness of his detention and order his release if his detention is not lawful.”

Generally speaking, the treaty places two types of obligations on States:

(i) Firstly, the duty to respect and ensure human rights; and

(ii) Secondly, the duty to guarantee that those same rights are respected.

The first set of obligations is both positive and negative in nature; on the one hand, the State must refrain (whether by act or omission) from violating human rights: and, on the other hand, the State must ensure that, through the adoption of whatever means necessary, such rights can be actively enjoyed.

In fulfilment of the positive duty to ensure the protection, enjoyment, and promotion of the rights set out in the International Covenant on Civil and Political Rights, 1966 (ICCPR), the Republic of Zimbabwe has given prominence to these rights by devoting an important part of its Constitution to these rights (Chapter III of the The Declaration of Rights, sections 11 to 26).

Section 13 of the Constitution of the Republic of Zimbabwe guarantees the protection of the right to personal liberty.

Section 13(3) thereof provides, that, any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language which he understands, of the reasons of his arrest or detention and shall be permitted, at his own expense, to obtain and instruct, without delay, a legal representative of his own choice and hold communication with him.

Subsection (4) further provides, that, any person who is arrested or detained, upon reasonable suspicion of his having committed, or being about to commit, a criminal offence; and, who is not released, shall be brought without undue delay before a court; and, if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without any prejudice to any further proceedings that may be brought against him, shall be released either unconditionally or upon reasonable conditions necessary to ensure that he appears at a later date for trial or proceedings preliminary to trial.

The meaning of the right, contained in section 13(4) of the Constitution, was considered by this Court in S v Makwakwa 1997 (2) ZLR 298 (H).

The Court noted that section 32(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] says:

"…, a person arrested without warrant shall, as soon as possible, be brought to a police station or charge office, and, if not released by reason that no charge is to be brought against him, may be detained for a period not exceeding forty-eight hours, unless he is brought before a judge or a magistrate, or a warrant for his further detention is obtained in terms of section thirty-three."

The enactment of this provision further demonstrates the State party's commitment to the upholding and promotion of the above rights. The judicial interpretation rendered to it is consistent with the spirit of that treaty.

From the above, it is clear, that, the police, on or about 30th October 2008, took all the applicants into their custody. They were required, by law, to advise the applicants of the reasons for their arrest. The police did not do so - almost 14 days after they effected an arrest!

They were legally obliged to afford the detained persons access to legal counsel as soon as possible. The police did not do so - 14 days after arresting the applicants.

In terms of the Constitution of Zimbabwe, the police were obliged to release the applicants if they failed to charge them with a criminal offence or bring them before a court of law within 48 hours of their arrest.

Again, the police did not do such a basic thing.

When they were sued, the police denied any knowledge of the applicants, when, clearly, they knew, or, ought to have known, that the applicants were being held in their custody.

When I asked counsel for the respondents, at the hearing, why his clients had not indicated some willingness to act according to the law in view of his advice to them, his response was that both the third and fourth respondents had taken leave of absence from their duties. No-one was prepared to deal with the matter.

Such conduct, by the police, ought to be deprecated.

Being officers of this Court, the respondents ought to have known better than to deny such a notorious fact as the detention of the applicants. This denial has placed their counsel in a position where he can hardly oppose the order sought.

The respondents have denied the applicants the protection of the law.

The respondents have permitted the applicants to be detained incommunicado. People are at risk of torture or other forms of ill-treatment if they are detained incommunicado. The risk increases the longer they are held as this allows for a longer period for injuries to be inflicted and visible marks of these injuries to fade.

Further, detainees have a right of access to legal advice without delay.

They should be able to consult with a lawyer, in private, while in custody; to have a lawyer present during interrogations; and to representing them when they appear in court. Lawyers should be able to advise and represent their clients in accordance with professional standards free from intimidation, hindrance, harassment, and without improper interference from any quarter.

This is trite. No authority is required for stating the obvious.

There is one more disturbing feature in this saga.

The respondents have not denied it, either orally through counsel or by their action. It is the detention of a two year old alongside its mother.

It hardly needs me to point out that being a signatory to the Convention on the Rights of the Child; the Republic of Zimbabwe must be seen, through the acts of its public officials, to be protective of the rights of the child.

One of the applicants was arrested and taken away together with her two year old baby. There is no suggestion that the baby was suspected of having committed, or being about to commit a criminal offence at the time.

There appears to be no provision in our law, as it currently stands, as to how the police should deal with such a situation.

Section 135(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] says that when a person under the age of eighteen years of age is accused of any offence other than treason, murder, or rape, any judge, magistrate or police officer who has power under that part to admit the said person to bail, may, instead of detaining him -

(a) Release him without bail and warn him to appear before a court ?r magistrate at a time and on a date fixed by such a person; or

(b) Release him without bail to the care of the person in whose custody he is and warn that person to bring him or cause him to appear before a court or magistrate at a time and on a day then fixed; or

(c) Place him in a place of safety as defined in section 2 of the Children's Act [Chapter 5:06] pending his appearance before a court or magistrate or until he is dealt with according to law.

Section 58 of the Prisons Act [Chapter 7:11] provides, that, subject to such conditions as may be specified by the Commissioner, any unweaned infant child of a female prisoner may be received into prison together with its mother and may be supplied with clothing and necessaries at the public expense provided that when such child has been weaned, the officer in charge, on being satisfied that there are relatives or friends of the child able and willing to support it, shall cause such child to be handed over to such relatives or friends. If he is not so satisfied, shall hand over such child to the care of such welfare authority as may be approved by the Commissioner for the purpose.

Section 84(1) of the Children's Act [Chapter 5:06] provides, that, a child or young person who is charged with an offence shall not, before conviction, be detained in a prison or police cell or lock-up unless his detention is necessary and no suitable remand home is conveniently available for his detention.

It is clear that all three statutes address the position of a child suspected of having committed a criminal offence.

The Children's Act does not expressly address the plight of a baby taken by police who have arrested its mother, but, in my view, the prohibition against detention of minors is implied in this section.

Article 16 of the Convention on the Rights of the Child provides thus:

"Article 16 Protection and Privacy

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks."

In any event, I hold, that, the protection afforded to children is over and above that set out in the Constitution and other statutes.

There is need, however, for the appropriate Act to expressly state this prohibition in clearer terms as it appears a lacuna exists in our law as presently constituted.

The conduct of the respondents, in this case, does not in any way uphold this international obligation to protect and promote the said rights.

It is not sufficient to pass legislation which recognizes the protective rights set out under international covenants and the Constitution as well as other domestic laws, when, in practice, the public face of the State acts in flagrant breach of such protection afforded by the law.

There must be adequate recourse in cases of breaches being proved before the courts.

To subject a two year old to the rigours of detention simply on the grounds that its mother may have committed some criminal offence is totally unconscionable and immoral.

This is made worse by the denial of basic rights to the mother in the present case.

It cannot be over-emphasised that the police can only act within the law. No-one is above the law or below it.

In the present case, the third and fourth respondents have callously demonstrated the affinity to act as if they were above the law.

Despite the fact that I directed that they file affidavits in answer to the allegations personally against them - none were forthcoming. I assume they have nothing to say for themselves in view of their blatant breach of the clear provisions of the law.

I will therefore make findings without having their side of the story since they have declined the opportunity to respond.

The applicants seek an order declaring their arrest and continued detention unlawful. They also seek an order requiring the respondents and all those acting through them or on their behalf to permit the applicants access to medical treatment at medical centres of their choices. Further, the applicants seek an order directing the respondent, or anyone calling through them or on their behalf, to produce the applicants before a High Court Judge in Chambers within two (2) hours of the order being made, or, alternatively, take the applicants for a remand hearing at the Magistrates Court at/or before 12h00 on 11th November 2008 failing which the respondents and all those calling through them, or acting on their behalf, shall forthwith release all the applicants from custody, and that, thereafter, no Magistrates Court should entertain the matter for remand purposes save for trial purposes, applicants having been duly summoned.

Because at the end of the hearing there was no opposition to the order sought I am of the view that costs on a higher scale should be reserved for those cases where there is malicious opposition.

Had the applicants sought an order for costs personally against the third and fourth respondents, I may have favourably considered granting it in view of the attitude displayed by the two to the present proceedings.

In the event, I will grant the following final order:

1. The treatment and continued detention of the applicants beyond the statutory 96-hour period be and is hereby declared unlawful.

2. That the respondents, and all those calling through them or acting on their behalf, be and are hereby ordered to take the applicants for a remand hearing at the nearest Magistrates Court at/or before 16h00 on 11 November 2008, failing which the applicants are entitled to their immediate release.

3. In the event of the State deciding to charge the applicants for any offence arising from the allegations presently under investigation, then, the police may proceed by way of summons.

4. The respondents, and all those calling through them or acting on their behalf, shall forthwith allow the applicants access to their legal practitioners, relatives, and to medical treatment at medical facilities of their choice.

5. This order shall stand notwithstanding the noting of any appeal.

6. This order shall be served by the applicants' legal practitioners or the Deputy Sheriff.

HHH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

The applicants were arraigned for trial before the first respondent, a Regional Magistrate sitting at Harare Magistrate's Court. The first respondent will, in this judgment, be referred to as the “magistrate”. The second respondent is the Attorney General of Zimbabwe. He is the prosecuting authority whose officer is prosecuting in the applicants' trial.

The applicants were, on 27 April 2010, arraigned before the magistrate to answer charges of contravening section 185(1)(b) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. They are alleged to have attempted to escape from Chikurubi Prison.

The case did not take off at the scheduled time. It was adjourned to 11:30am.

When it resumed, at 11:30am, counsel for the first, fourth, fifth, and sixth applicants, who had been in attendance when the case was adjourned to 11:30am, was now not in attendance. The first applicant sought a postponement because their legal practitioner was not in court.

The magistrate turned down the application, and ordered the first applicant to give his Defence Outline.

The fourth, fifth, and sixth applicants also applied for a postponement, on the grounds that their legal practitioner was not in attendance, and that they were staying in a cell without sufficient light and had not been able, for that reason, to prepare their Defence Outlines. They also alleged that prison officers had taken their court documents and only returned some of them.

Their applications for a postponement were, again, not granted. The magistrate ordered the applicants, who were all now not represented, to give their Defence Outlines.

Counsel representing the first, fourth, fifth, and sixth applicants, arrived when the first applicant was giving his Defence Outline.

He applied for the recusal of the magistrate because he had presided in the cases of S v Donald Tapera Gwekwerere and S v Assan Chikwanda, who were participants in the applicants' alleged attempted escape from prison. They pleaded guilty and were convicted by the magistrate who sentenced them to terms of imprisonment.

He submitted, that, the applicants reasonably believe that the magistrate's knowledge of their case, gained from his presiding over the Gwekwerere and Chikwanda cases, will make it impossible for him to impartially assess their evidence in view of the fact that Gwekwerere and Chikwanda will testify for the State in the applicants' trial.

The magistrate dismissed the applicants' application for recusal and ordered that the trial should proceed.

The applicants then filed this urgent application, seeking an order staying the proceedings before the magistrate pending their review by this court.

Generally, this court does not encourage the bringing of unterminated proceedings for review.

There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review.

An application of this nature can only succeed if the application for review has prospects of success.

In the case of Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (HC) DEVITTIE J…, said:

“If an allegation of bias has been proved the proceedings, are a nullity. Therefore, it would be unjust to require that the accused go through the motions, if he is convicted, (sic) of the sentencing process, followed by an appeal or review in respect of proceedings proved to be abortive at the stage of the application for recusal.

Thus, in S v Herbst 1980 (3) SA 1026 (C), where the facts showed that the magistrate's conduct of the proceedings might have created the impression 'in the mind of the right-minded layman that he was unfavourably disposed towards the applicant', the court intervened in unterminated proceedings by setting aside the proceedings and referring the matter for hearing de novo before another magistrate. It was not necessary, the court stated, to show that the magistrate was in fact biased.”

The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the Reviewing Court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.

The success of the application for review depends on whether or not the application for recusal was one which the magistrate should have granted.

Judicial officers generally recuse themselves on their own motion (sua sponte), or on application by a party, on realizing the presence of facts disqualifying them from presiding over a case.

If the judicial officer does not recuse himself in such circumstances, a party who applies for the judicial officer's recusal, and his application is turned down, is most likely to succeed if he applies for the stay of the proceedings pending review.

The present case does not fall into that class of cases where the reason for recusal is easily identified. It falls in the class of cases where the reasons for recusal are not actual bias i.e. bias against a party, personal knowledge about the case, personal interest, or a close relative's interest in the case, etc.

The intended review in this case involves an appearance of bias, which is the applicants' perception of how the magistrate is conducting their case, based on how he handled preliminary applications in their case, his exposure to information about their case, and his refusal to recuse himself.

Appearance of bias from the dismissal of applicants' applications

Counsel for the applicants submitted that the magistrate's dismissal of the applicant's applications for postponement when their counsel failed to appear in time at 11:30am, and his requiring them to immediately give their Defence Outlines in spite of their having been represented, and that they had not had time to prepare Defence Outlines as prison officers had confiscated their State papers and returned them with some statements missing, reflects an extraordinary eagerness of his and the second respondent to fast track the trial. He submitted that this raises a reasonable apprehension of bias in the applicants.

Counsel for the second respondent submitted, that, the prosecutor who represented the second respondent at the trial before the magistrate had opposed the applicants' applications for postponement. He therefore submitted, that, the magistrate exercised his judicial function in determining an interlocutory issue placed before him by the parties.

It is true that the applicants may perceive the handling of their applications as an indication of the magistrate's bias against them. That, however, is not enough to indicate prospects of success on review.

An application for recusal must be based on a reasonable litigant's apprehension of bias and the apprehension must itself be reasonable.

In the case of Silwana & Anor v Magistrate, District of Piketberg & Anor 2003 (5) SA 597 (C)…, FOXCROFT J said:

“In decisions in recent years, Judges have been reminded that one should not be unduly sensitive about applications for recusal. As HOWIE JA (as he then was) said in S v Roberts 1999 (4) SA 915 (SCA) (1999 (2) SACR 243) para [26] at 923B-C:

'It is settled law that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding (or continuing to preside) over judicial proceedings. The disqualification is so complete that continuing to preside after recusal should have occurred renders the further 'proceeding' a nullity.'”

Council of Review, South African Defence Force & Ors v Mönnig & Ors 1992 (3) SA 482 (A) is referred to, and also the remarks in S v Malindi & Ors 1990 (1) SA 962 (A)…, where CORBETT CJ said that:

'The common law basis of the duty of a judicial officer, in certain circumstances, to recuse himself, was fully examined in the cases of S v Radebe 1973 (1) SA 796 (A) and South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T).

Broadly speaking, the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he will not adjudicate impartially.

The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that, in reality, the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important.'”

In the case of South African Commercial Catering & Allied Workers Union & Ors v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC)…, the South African Constitutional Court, per CAMEROON AJ, dealing with the concept of apprehension of bias, said:

“The court in Sarfu further alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but, the apprehension itself must, in the circumstances, be reasonable.

This two-fold aspect finds reflection also in S v Roberts 23, decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds.

It is no doubt possible to compact the 'double' aspect of reasonableness in as much as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But, the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance.

As CORY J stated in a related context on behalf of the Supreme Court of Canada:

'Regardless of the precise words used to describe the test, the object of the different formulations is to emphasise that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity.'

The 'double' unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a judge will be biased, even a strongly and honestly felt anxiety, is not enough.

The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court super-imposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value, and, thereby, decides whether it is such that it should be countenanced in law.”

The magistrate's handling of the applications for postponement must be tested against the reasonableness of the applicants and the reasonableness of their apprehension of bias.

The magistrate was aware that the applicants' case was coming before him for trial. He knew their legal practitioner had been in court in the early part of that morning. The rescheduled time for the trial of the applicants' case had arrived. The legal practitioner was no longer in attendance - without having been excused. The State wanted to proceed with the trial.

The fact that the trial was scheduled to take off means the applicants' legal practitioner must have prepared their Defence Outlines. He would have done so with instructions from the applicants. There was therefore no impropriety in the magistrate's order that the applicants should give their Defence Outlines. They were expected to be ready with their Defence Outlines as they knew that the trial date was approaching. They could simply give their Defence Outlines as per the instructions they had given to their legal practitioner.

Though the second and third applicants were not represented, they too knew of the trial date, and should have been prepared to give their Defence Outlines on the trial date.

The first, fourth, fifth, and sixth applicants' allegations, about the disabling prison conditions, could not justify a postponement as their legal practitioner was free to prepare the Defence Outlines, and could easily have asked the State for the alleged confiscated papers.

The magistrate was entitled to make a value judgment on the applications for postponement as they were marred by appearances of delaying tactics. The applicants' apprehension of bias on this aspect is not reasonable and cannot therefore be countenanced in law.

A judicial officer is expected to manage his court in the interest of justice and the efficient administration of justice. The circumstances in which the applications for postponement were dismissed must therefore be carefully considered.

A judicial officer can, in a proper case, insist that a scheduled trial must take off. That would not, in the absence of other apparent motives, be an indication of a reasonable appearance of bias to a reasonable litigant.

In the case of Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) HARMS JA, commenting on a situation similar to the one arising in this application, said:

“Everyone is entitled to a fair trial and that includes the right to a hearing before an impartial adjudicator. This common law right is now constitutionally entrenched. Present a reasonable apprehension of bias, the judicial officer is duty bound to recuse him or herself. The law in this regard is clear, having been the subject of recent judgments of both this court and the Constitutional Court, and does not require any restatement. It is nevertheless convenient, for present purposes, to quote the following extracts from a Constitutional Court judgment for purposes of emphasis and because they are particularly germane to this case:

'The question is whether a reasonable, objective, and informed person would, on the correct facts, reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel.

At the same time, it must never be forgotten, that, an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

That is one side of the coin. The other is this:

A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge's position, in a criminal trial, is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure, but to see that justice is done.

The same applies to civil proceedings: a judge is not simply a 'silent umpire'. A judge is not a mere umpire to answer the question 'how's that?''

LORD DENNING once said:

'Fairness of court proceedings requires of the trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence.'

A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources.

One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to re-appear at a later stage), or, of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented.

Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.

A balancing act by the judicial officer is required because there is a thin dividing line between managing a trial and getting involved in the fray. Should the line, on occasion, be overstepped, it does not mean that a recusal has to follow or the proceedings have to be set aside. If it is, the evidence can usually be re-assessed on appeal, taking into account the degree of the trial court's aberration.”

I entirely agree with HARMS JA's comments on the judicial officers' responsibilities in the management of cases that come before them for trial or in preparation for trial. I would only add that this equally applies to magistrates, who, in fact, preside over more cases than judges.

The need for firm control of proceedings is called for as a supine approach will result in avoidable backlogs.

The need for efficient court management by judicial officers must however give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and, turning down those made for dilatory purposes.

I am, in this case, satisfied that the magistrate was merely exercising firm control of the proceedings in circumstances where he was justified to suspect delaying tactics on the part of the applicants and their legal practitioner.

The applicants' suspicion of bias is not justified as they had come to court for trial, and must have, by then, prepared their Defence Outlines through their legal practitioner who could only do so on their instructions.

I therefore cannot stay the proceedings on the alleged appearance of bias due to the magistrate's refusal to grant the applicants a postponement because their legal practitioner had not come to court at the agreed time.

Appearance of bias due to the Magistrate's prior exposure to information on the applicants' case

The applicants' stronger ground for believing that they may not have a fair trial before the magistrate is based on his having presided over and convicted their alleged accomplices in the attempted escape from prison.

Counsel for the applicants' submitted, that, the magistrate presided over the applicants' accomplices' trial. Those accomplices were convicted on their own pleas for their participation in the applicants' alleged attempt to escape from prison. They were sentenced, and are now going to be called as State wittiness's against the applicants.

He submitted that this creates a reasonable appearance of bias as the magistrate is most likely to believe the accomplices when they testify that an attempt to escape from prison occurred, than to believe the applicants' if they were to say it did not.

Counsel for the second respondent submitted that the magistrate is a trained judicial officer who cannot be influenced by his being exposed to the facts of this case by his having previously handled the applicants' accomplices' trials which resulted in his convicting them on their own pleas. He submitted that the magistrate will be guided by rules of evidence.

It is common cause that the magistrate presided over the cases of S v Donald Tapera Gwekwerere and S v Assan Chikwanda, It is also common cause that the evidence of these convicted accomplices will be led at the applicants' trial. The magistrate convicted them after believing that their pleas of guilty confirmed their participation in the attempted escape from prison.

The case of the applicants will depend on whether or not the magistrate will believe the convicted accomplices when they say they were acting in common purpose with the applicants' when they executed their part in the attempted escape for which he has already convicted them.

The applicants perceive, that, the fact of the alleged attempted escape is established in the magistrate's mind by the information he obtained from presiding over Gwekwerere and Chikwanda's trials. They are apprehensive, that, he is unlikely to disbelieve Gwekwere and Chikwanda if they, in their testimonies, say there was an attempted escape, as he has already convicted them for their participation in it. That, if their apprehension is reasonable, will restrict them to denying having participated in the attempt to escape from prison.

This, in my view, demonstrates how the information on their case the magistrate already has will prejudice them if their trial is to be before the same magistrate.

The applicant's situation is different from the one which was in Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC where VAN DER WALT J…, held that:

“Accordingly, where a judge, during liquidation proceedings, finds that the respondent has committed breach of contract, and the question arises, in separate proceedings, between the same parties and in respect of the same facts, whether that breach was such that it constituted a repudiation of the contract in question, the determination of the judge in connection with the breach of contract per se is res judicata, and he is not obliged, by reason of possible bias, to recuse himself from the later proceedings, in which the only further question that arises is whether the breach amounted to repudiation.”

In Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC it was held that the fact that a judicial officer previously “made a decision about substantially the same dispute between the same parties and that he must therefore be biased when he presides over the same parties' dispute for the determination of a further issue arising from the one already decided is answered by the principle of res judicata putting that judicial officer in the same position as any other judicial officer.

In such a case, there would be no reason for the judicial officer to recuse himself, because once a matter is res judicata it cannot be decided again on the same issue. The decision made will stand whether or not the same judicial officer presides to determine an issue arising from its off shoot Therefore, the same judicial officer, or any other judicial officer of competent jurisdiction, can preside.

In Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC the dispute which had been decided was between the same parties as those who were in the dispute to be decided. In this case, the dispute decided by the magistrate is between S v Gwekwerere and S v Chikwanda, while the one to be decided in the trial before the magistrate is the one between the State and the applicants. The two disputes are therefore not between the same parties.

The applicants' apprehension of bias cannot, therefore, be defeated by the principle of res judicata.

In this case, the issue of there having been an attempt to escape from prison is not res judicata between the applicants and the State. It has never been decided between them but will be one of the issues to be proved either way for the applicants' conviction or acquittal.

It is, however, a decided issue between the accomplice witnesses, the State, and the magistrate.

That is why it is inconceivable how the magistrate can be expected to properly assess Gwekwerere and Chikwanda's evidence in the applicants' trial when their participation in the attempted escape from prison has already been decided in their own trial.

The fear that he will be biased towards believing them is therefore real and must lead to his recusal.

There is no doubt in my mind that justice will not be seen to be done when a magistrate who has convicted the accomplice has to determine whether that accomplice is telling the truth when he comes before him as a witness to tell the same story - but now for the purpose of securing the unconvicted accomplices' conviction.

It is accepted that the magistrate is a trained judicial officer, and that there is a presumption of judicial impartiality in his favour. The presumption arises from his judicial oath of office that he will deliver justice without fear or favour. That cannot, however, convince the applicants to believe that he will dispassionately assess the evidence of witnesses he previously believed and convicted having accepted that they correctly confessed their part in the crime the applicants are facing.

In the case of Silwana & Anor v Magistrate, District of Piketberg & Anor 2003 (5) SA 597 (C), a magistrate who issued a search warrant for the accused, and, thereby, got prior information on the commission of the offence, could not be allowed to preside over the accused's trial. FOXCROFT J, commenting on the undesirability of a magistrate who issued the search warrant to preside over the same accused's trial…, said:

“An accused person in the position of the applicants would certainly have reason to fear that a magistrate might well remember what was said in the affidavit when the witness who testified in advance of the search warrant does not testify at the trial.

Dealing with the practical difficulties raised by the magistrate, it is, in my view, necessary for a magistrate in a different town to sign search warrants in situations like the present one. Alternatively, if a local magistrate has signed a search warrant, after seeing an affidavit of this kind, he or she should not sit in a case, and a magistrate should be brought from a neighbouring jurisdiction. In my view, there is merit in the review brought to this court and there will be an order in terms of para 1 of the notice of motion.”

What is of paramount importance, in this case, is the applicants' apprehension of bias based on their knowledge that the magistrate presided over the facts of the case they are facing with the only difference being that he presided over their alleged accomplices' case.

Can the applicants' apprehension be said to be unreasonable?

I do not think so, especially when consideration is given to the convicted accomplices' coming to testify before the magistrate who convicted them in their own trials.

The river of justice must be allowed to flow clear and clean. It should not be turned muddy by reasonable perceptions of bias emanating from a judicial officer's insistence to preside over cases where his or her presiding does not help in ensuring that justice is seen to be done.

The appearance of justice must not be blurred by appearances of what may, to the applicants and the general public, reasonably seem to be an unfair trial. This should be avoided especially at a court where other judicial officers can preside over the case without raising perceptions of bias.

The words of advice quoted by HARMS JA…, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) must constantly remind us that:

“It must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

As already said, the test is on the reasonable litigant's reasonable fear that he will not have a fair trial.

In this case, the applicants are, at their trial, going to face their alleged convicted accomplices. They are to do so before the magistrate to whom the accomplices have already confessed their participation in the alleged attempted escape. The magistrate has already convicted the accomplices on their confessed participation.

Can he be expected to preside with a mind open to persuasion by evidence or submissions by counsel as to whether or not there was an attempt to escape from prison when he has already convicted the accomplices for that offence?

This means all the applicants can say is that they were not involved. It will be difficult for them to say there was no attempt to escape from prison.

In their minds, they must be finding it difficult to believe that the magistrate who has already convicted Gwekwerere and Chikwanda for that offence would believe them if they were to proffer a defence that there was no attempt to escape from prison.

The applicant's further apprehension is on the magistrate not believing them, and, instead, believing those he has already convicted.

Their apprehension is therefore based on facts. It is reasonable. They must, if the record of proceedings to be reviewed supports their allegations, be given a chance to a fair trial before a magistrate who has not already dealt with the facts of the allegations they are facing.

I must conclude by echoing CAMERON AJ's words of guidance in the case of South African Commercial Catering & Allied Workers Union & Ors v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC)…, where he said:

“Courts considering recusal applications asserting a reasonable apprehension of bias must accordingly give consideration to two contending factors:

On the one hand, it is vital to the integrity of our courts and the independence of judges and magistrates that ill-founded and misdirected challenges to the composition of a Bench be discouraged. On the other, the courts' very vulnerability serves to underscore the pre-eminent value to be placed on public confidence in impartial adjudication. In striking the correct balance, it is 'as wrong to yield to a tenuous or frivolous objection' as it is 'to ignore an objection of substance'”.

I am therefore satisfied that the applicants' application for the review of the magistrate's refusal to recuse himself has prospects of success.

The applicants' application for interim relief is granted.

Pending determination of this matter, the applicants are granted the following relief-

1. That, pending the hearing of this matter on review, the applicants be and are hereby granted stay of the criminal proceedings before the first respondent.

HHH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: 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 ...

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 first 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 fourth 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 fourth 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)…,.

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 fourth 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 the fourth 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 Itayi 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…, 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 High Court 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)…,.

On the other hand, the interim relief sought herein is to bar the first 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) of the High Court Act.

Propriety of Application

Section 229 of the Criminal Procedure and Evidence Act [Chapter 9:07] 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 first 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 first respondent affirms that the subpoena was originally issued by the Clerk of Court at the request of the fourth respondent. Subsequently, following the reluctance of the police to serve the subpoena, the first respondent directed that the subpoena be “reissued to the police to serve the witnesses for the defence today.”

The first 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 first respondent but by the Clerk of Court acting in terms of subsections (2) and (3) of section 229 of the of the Criminal Procedure and Evidence Act.

It follows that the validity of the subpoena, on its merits, was never canvassed before the first 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 fourth 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 Gazetted Lands 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 [Chapter 9:07]. 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 fourth 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) of the Gazetted Lands Act 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 Gazetted Lands Act: see Chirikure & Others v Kenmast Farming (Pvt) Ltd & Others HH106-05; 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 of the Gazetted Lands Act.

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 of the Gazetted Lands Act.

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 fourth respondent in relation to the land in question, is highly relevant and clearly admissible for the purposes of the fourth respondent's acquittal or conviction under section 3 of the Gazetted Lands Act.

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 fourth 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 first respondent, or any other magistrate, from compelling the applicant to testify at the fourth respondent's criminal trial.

As regards costs, the applicant's counsel conceded, at the hearing of this matter, that the first 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 first 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 second, third, and fourth respondents are therefore only entitled to their costs on the ordinary scale.

In the result, this application is dismissed with costs as aforesaid.

HH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

This is an appeal against the refusal of bail (pending trial) in the Magistrates' Court in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the following grounds:

“1. The Magistrate misdirected himself in law in failing to find that 'compelling reasons' demanded by section 50(1)(d) of the Constitution of Zimbabwe, 2013 had not been established by the State, particularly in that:

1.1 There was neither evidence nor any other basis from which it could be said that appellant was likely abscond;

1.2 There was neither evidence nor any other basis from which it could be said that appellant would interfere with witnesses;

1.3 Reference to 'public outcry' is, in itself, never a compelling reason given that it is the people themselves that entrenched a presumption of innocence in the Constitution;

1.4 The State did not address any of the bail conditions offered by the appellant, thereby failing to discharge the onus thrust upon it by law. A compelling reason is one that remains notwithstanding bail conditions.

2. The decision to deny bail, on the basis of the above grounds, is so outrageous in its defiance of logic or common sense that no reasonable magistrate, applying his/her mind to the facts and conscious of the right to liberty, could ever have reached that conclusion, particularly in that:

2.1. No reasonable magistrate could have failed to find that the bail conditions offered by the appellant overwhelmingly addressed and answered each of the grounds upon which bail could be refused;

2.2. No reasonable Magistrate could have failed to find that the appellant, in the circumstances, met all the requirements set out in law for release on bail.”

The appellant is a former Member of Parliament and Cabinet Minister. He was arrested on 15 November 2017 at his home in Mount Pleasant. He stated that on the night in question, he heard an explosion at around midnight of 14 November 2017 but did not wake up until he had heard the sound of a second explosion which shook his house.

His wife had woken up at the sound of the first explosion upon which she had observed certain persons jumping into the property. The appellant got up to investigate whereupon his bedroom door burst open and 5 to 8 men armed with AK47 rifles burst into the room (who he described as being soldiers), pointed the guns at him, and handcuffed him whilst blindfolding him with his T-shirt.

He stated that the men were dressed in 'military uniform (green camouflage) including shoes.'

The appellant stated that he was forced out of his home, barefooted and blindfolded, and placed lying sideways in a lorry with occupants securing his body, head, and middle to prevent him from wiggling out of the vehicle.

He described that after travelling for about an hour he was interrogated with accusations that he had not run his Ministry (Ministry of Home Affairs) well, with one of the assailants or detainers complaining that the appellant had failed to provide him with a Stand when he was Minister.

He was taken to an undisclosed location and detained there for some days.

He told the court that on the second day of his detention, his captors allowed him to write a note so that they could collect his medication from his home. He also stated that he also requested a shirt and trousers and toiletries. At some point, his captors brought his doctor to attend to him whilst he was so detained.

During his time in captivity, over the next few days, he was interrogated by four to six men about decisions he had taken as Minister of Local Government. He said that he was guarded at all times by two to three people.

He told the court that he was never assaulted by his captors and that they made efforts to meet his requests for provisions because he is diabetic with other illnesses.

The day before he was taken to court, they removed his blindfold and drove him to his home. Upon arrival, the appellant noticed policemen sitting in a car which was parked outside the gate of his house. He told the court that the police who were blocking the entrance to his home, complied with an authoritative request made by his captors for them to move their vehicle out of their way.

His captors dropped him off.

At his house, his abductors allowed him to make a request to his wife to bring him his spectacles. His captors left and the police who were at his house took over and basically ferried him away.

He recalled the specific date of his abduction as being 15 November 2017 because he had attended a Cabinet meeting earlier on the same day. The appellant vehemently denied that he had been arrested on 23 November 2017 which is the date of arrest reflected on the charge sheet. His charge sheet shows that he was arrested on three counts for the following crimes as alleged:

“1. Count One - Section 4 of the Prevention of Corruption Act [Chapter 9:16] - 'Does anything that is contrary to or inconsistent with his duty as a Public Officer.'

2. Count Two - Criminal Abuse of Duty as Public Officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

3. Count Three- Fraud.”

Count One pertained to actions allegedly taken by the appellant in 2004 to 2009. Count Two pertained to alleged criminal acts by the appellant on 13 December 2006 and 25 March 2008. Count Three pertained to a fraud allegedly committed by the appellant between 8 December 2005 to 26 January 2006.

The appellant immediately applied for bail. The State opposed his application on the following grounds:

“1. Considering the seriousness of the offence, and the stipulated sentence if convicted, the accused is likely to abscond so as to evade prosecution.

2. Accused is the former Minister of Local Government who had access and control of the personnel hence the accused is likely to interfere with witnesses.

3. The current political situation is not favourable to the accused's safety. It is therefore proper for the accused to be remanded in custody for his safety.”

The reasons given by the State, both in opposing bail in the court a quo, and in opposing bail on appeal, are not founded in fact.

The court a quo was not furnished with reasons or evidence upon which it could make a determination regarding whether or not the interests of justice would be best served by remanding the appellant into custody.

Section 117(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] states as follows:

“117 Entitlement to Bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established —

(a) Where there is a likelihood that the accused, if he or she were released on bail, will —

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

No reasons were provided, nor any evidence led in support of the State's grounds for opposing bail. Neither did the court a quo make any enquiry to establish the veracity of the State's reasons for opposing bail, as would have been expected of it, prior to arriving at its determination refusing bail.

The State didn't provide the reason for believing that the appellant would abscond save to just merely allege that the appellant may abscond; neither did it identify which witnesses the appellant was likely interfere with if he was let out on bail.

The court also failed to make an enquiry into the State's allegation that “the current political situation was not favourable to appellant” to the extent that the appellant needed to be remanded in custody.

The State case consisted of mere allegations; and the court misdirected itself in lending credence to those grounds of opposition by simply accepting them without enquiry.

The court a quo grossly misdirected itself in its findings: see Aitken v Attorney-General & Anor v Aitken 1992 (1) ZLR 249 (S); Air Zimbabwe v Phiri 1988 (2) SA 696; S v Ncube 2001 (2) ZLR 556.

The errors and omissions committed by the court a quo, in arriving at its determination to refuse the appellant bail, are so egregious that they warrant me invoking my powers of review in terms of section 27(1)(c) of the High Court Act [Chapter 7:06].

I deem that the proceedings a quo were not in terms of real and substantial justice. The gross errors committed a quo require correcting.

The decision made a quo was unconstitutional to the extent that the court did not observe, as it was obliged to, the provisions of section 50 of the Constitution.

The appellant was subjected to inhumane and undignified treatment at the hands of his captors. He was not informed of the reason for his abduction, at the time that he was arrested in the dead of night at his home, or at any time prior to being brought to court on 23 November 2017.

Contrary to the peremptory provisions of section 50(2)(b) of the Constitution, the appellant was held for far beyond 48 hours in an undisclosed location.

I was troubled by the comments made by the court a quo in remaining complicit with the State's misleading statement that the date of arrest was when the police arrested the appellant, in circumstances where the appellant had been abducted and kept incommunicado by State agents several days before the police 'arrested' the appellant.

It's obvious that the police were in cahoots with the mysterious Sate agents given the fact that they took off where the State agents left off.

The appellant was detained by State agents on 15 November 2017 and only bought before a court of law a whole week later. To that end, the court sanctioned a breach of section 50(5) of the Constitution.

The appellant was kept incommunicado and thus denied his right to remain in communication with family or to consult, in private, with his lawyer or doctor during the period of his detention per section 50(5)(c) of the Constitution:

“(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult, in private, with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material, and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

When looking at the reasoning of the court a quo, in denying the appellant bail, it is my overall view that the court a quo got swept up by the sensationalism of the case and allegations surrounding the appellant's arrest.

The Magistrate lost sight of the fact that she was seized with an ordinary application for bail because she did not deliberate upon the meaning and intention behind section 50(1) of the Constitution which reads:

“50 Rights of arrested and detained persons

(1) Any person who is arrested —

(a) Must be informed, at the time of arrest, of the reason for the arrest;

(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult, in private, with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;

(d) Must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and

(e) Must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.”

The arrest and detention of the appellant were, in my view, illegal.

The unfortunate and illegal actions which preceded the appellant's appearance before the court a quo, and which illustrate the manner by which the appellant was dealt with by State agents and the police, ran afoul to the presumption of innocence weighing in his favour.

However, as appalling as his treatment was, I am mindful of the fact that the charges would still not have been tainted: see Jestina Mukoko v Attorney General 2012 (1) ZLR 117 (SC).

The appeal before me is for bail pending trial.

In my view, this is a proper case for setting aside the decision of the court a quo on the basis that the court a quo grossly erred in denying the appellant bail.

Accordingly, I order as follows:

1. The appeal succeeds.

2. The appellant be and is hereby admitted to bail on the following conditions stated hereunder:

(a) The appellant deposits an amount of US$5,000 with the Clerk of Court, Harare Magistrates' Court.

(b) The appellant to reside at 847 Golden Stairs, Mt Pleasant, Harare.

(c) The appellant to report three times a day one between the hours of 6am to 10am; 1am to 2pm; 4pm–6pm at Marlborough Police Station, Harare.

(d) The appellant to surrender title deeds to his residential property.

(e) The appellant to surrender his passport and any other travel documents he may possess.

(f) The appellant is not to interfere with witnesses or tamper with evidence.

(g) The appellant is not to visit the offices of the Ministry of Local Government and those of the Reserve Bank of Zimbabwe.

HB37-10 : THE STATE vs MTHUKUTHELI SIBANDA
Ruled By: CHEDA J and MATHONSI J

The congestion of Gwanda prison is purely an administrative issue and not a legal issue at all. Therefore, by allowing it to cloud its mind, the court seriously misdirected itself. While it, indeed, is a factor to be considered, it cannot be a factor which can justify a non-custodial sentence ...

CCC04-14 : JENNIFER WILLIAMS and MAGODONGA MAHLANGU and CLARA MANJENGWA and CELINA MADUKANI vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL OF POLICE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA, MAKARAU JA GOWORA JA and OMERJEE AJA

This application is brought in terms of section 24(1) of the Constitution of Zimbabwe which provides as follows:“24 ENFORCEMENT OF PROTECTIVE PROVISIONS(1) If any person alleges that the Declaration of Rights has been, is being, or is likely to be contravened in relation to him (or, in the case of ...

This application is brought in terms of section 24(1) of the Constitution of Zimbabwe which provides as follows:

“24 ENFORCEMENT OF PROTECTIVE PROVISIONS

The applicants, who are members of an organisation called Women of Zimbabwe Arise (WOZA), a non-profit organisation which seeks to advance the rights of women in Zimbabwe, allege that their various rights, enshrined in the Declaration of Rights as set out below, were violated by the respondents.

THE BACKGROUND

The applicants were arrested during the course of a demonstration, on 15 April 2010, against what they alleged to be the appalling service provision from the Zimbabwe Electricity Supply Authority (ZESA), and detained at the Harare Central Police Station. The first applicant is the Director of Women of Zimbabwe Arise.

It was alleged by the first applicant that on arrival at the police station, she was ordered by police officers at the Law and Order Section to remove her shoes, jacket and brassiere causing her to remain with a single top and bottom. She felt violated by being forced to remove such an intimate piece of apparel and deposit it with the police. She was shocked to be handed a filthy bag in which to place such intimate wearing apparel as well as her outer clothing and personal belongings and this made the whole exercise 'all the more dehumanizing.'

She was force-marched, barefoot, on a dirty floor, to the holding cells where her senses were assaulted by the choking smell of human excreta and flowing urine of varying colours. The holding cells were 'full to overflowing' with human excreta and the built-in beds were also covered with the same. The lights did not work and the entire atmosphere was damp and dark without any fresh air. She spent the night in one of the corridors huddled up together with the second, third and fourth applicants even though urine flowed there as well.

During the night, she discovered that the toilet was within the cell. When she needed to relieve herself, she had to wade through a pool of urine. The toilets had no running water and were full of human excreta. She later discovered that this was because the toilets are flushed from outside and are thus flushed at the pleasure of the police officers who did not do so often judging by the fact that excreta from the toilet was flowing into the cells.

There was no toilet paper and she was refused permission to carry her own. The toilet bowl is not partitioned from the rest of the cell and it was not possible to relieve oneself in privacy. She had to use the toilet in full view of the other occupants of the cell.

No sanitary provisions were made for menstruating women, such as washing and disposal facilities and provision of sanitary towels.

During the night, she requested blankets for warmth and was given three blankets, which reeked of urine - for use by the sixteen detainees in the cell.

There was no shower, no bathing or ablution facilities and no drinking water was available. She had to depend on the kindness of those who visited her for that.

Although certain cleaners came to mop the floor, they confined themselves to cleaning the corridors and the cells were not cleaned. She was given no food by the police and had to rely on the food brought to her by friends and relatives. However, that was unpalatable as she had to eat it in the corridor of the same cell which was overflowing with excreta. She spent five nights in the cell under these conditions and her complaints to the police fell on deaf ears.

The other three applicants associated themselves with these averments.

In addition, the second applicant alleged that her mobile phone, which she was made to surrender to the police at the time of her detention by them, had been tampered with.

The applicants claimed that in view of the above, their constitutional right to protection from torture or to inhuman and degrading treatment or punishment as enshrined in section 15(1) of the Constitution of Zimbabwe was violated by the respondents.

They alleged, also, that the failure to make provision for the peculiar needs of women, for example, sanitary facilities, as set out above, amounted to discrimination against women in violation of section 23 of the Constitution.

In essence, the applicants aver that the circumstances in which they were detained, as narrated above, deprived them of protection of the law guaranteed in section 18 of the Constitution, constitute inhuman and degrading treatment prohibited under section 15 of the Constitution, and amounted to a violation of their right, enshrined in section 23 of the Constitution, to be protected from discrimination on the basis of sex.

They sought declaraturs to the effect that their constitutional rights enshrined in those sections of the Constitution had been violated as well as certain consequential relief.

The respondents opposed the application and relied on the affidavit of the second respondent.

They denied that the conditions in the cells were as deposed to by the applicants. They averred that it is procedural for detainees to be made to remove some of their apparel. This is standard procedure and is provided for by section 41 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”) as read with the Police Standing Orders Volume 1. Arrested persons, they averred, are searched by the arresting detail in strict compliance with the terms of the Criminal Procedure and Evidence Act [Chapter 9:07] and particularly section 41(4) of the Criminal Procedure and Evidence Act [Chapter 9:07], with reference to women, and all money and articles connected with an offence as well as all things which a prisoner could use to cause harm to himself or others or which could be used to effect his escape are collected from the arrested persons. They denied that the applicants were ordered to remove their 'undergarments' because 'the law does not allow it' but did not deny that they were made to remove their brassieres. Whatever was meant to be conveyed by the term 'undergarments', the respondents' attitude, as expressed in their heads of argument as well as in oral argument before us, that brassieres are not necessary wearing material within the meaning of section 41 of the Criminal Procedure and Evidence Act [Chapter 9:07] would appear to support the applicants' averment that they were made to remove their brassieres. Indeed, the respondents, in their heads of argument, submit:

“The Applicants contend that they were made to remove their undergarments and in their founding affidavit the undergarments are specified as brassiere. They argue that it is necessary wearing apparel. Although the brassieres are mentioned in their founding affidavits, in their heads of argument they simply use the word undergarments, which ordinarily would include panties. However, since applicants' case is founded on their founding affidavits, Respondents submit that what Applicants were made to remove were their brassieres.”…,.

We therefore resolve this apparent dispute of fact in favour of the applicants.

It was not denied that the applicants were made to remove their shoes as this was 'standard procedure.'

In response to the allegation that the light in the cell was not functioning, they averred that the lighting system at the police station is fully functional.

While the location of the toilet within the holding cell was admitted, it was denied that the applicants had to wade through urine. The reason given for the denial was that, if that had happened, the applicants would have contracted a disease of some sort. They maintained that there is running water at the police station and denied that there was human excreta flowing into the holding cell from the toilet.

They averred, further, that it is standard procedure that a police detail is placed on guard duty at the cells to deal with detained persons' requests. Where no member is placed on guard duty all suspects are to be visited at least every half hour. Such visits are recorded in the charge office diary or report book maintained for this purpose. [However, neither the diary nor the report book was attached to the opposing affidavit].

They maintained that although no toilet paper is kept in the cells, it is issued upon request. While it was admitted that no sanitary provisions are made for menstruating women, the women are permitted to bring their sanitary requirements. They added that these concerns are being addressed by a committee set up by Cabinet to look into the conditions of police and prison cells, which committee is expected to make recommendations on how best to improve the detention conditions of suspects and convicted persons.

It was denied that the blankets given to the applicants were dirty, although, by virtue of the number of detainees in the cells, they could have been inadequate.

According to police standards, so they averred, prisoners are to be supplied with good drinking water and sufficient wholesome food. The inadequacy of these provisions is also one of the matters being looked into by the committee.

It was denied that the cells were unclean, as deposed to by the applicants, because, so it was averred, general hands scrub the police cells daily with detergent and disinfectant during the daily prisoners' exercise period of thirty minutes and the Officer in Charge arranges for daily inspection of the cells.

The court was urged to inspect the cells in order to ascertain the actual conditions prevailing thereat.

An inspection of three cells was undertaken at the Harare Central Police Station, the applicants being unsure of the actual cell in which they were detained.

It is common cause that all the cells are structurally standard.

It was apparent that great effort had been made to clean the floors of the corridors and stairs leading to the cells. There was a heavy smell of floor polish and the court had to step carefully to avoid falling by reason of the slippery floors.

Of the cells inspected, two were located on the second floor and one on the first floor. The structural details differ little from that deposed to in the applicants' papers. There were six built-in concrete beds in bunk form in each of the cells. In the cell on the first floor, there were six folded blankets lying on one of the built-in concrete beds. The one shown to the court was torn and frayed but appeared to be clean. There was a toilet in one corner of each cell in the form of a raised platform in the centre of which was an open hole. There was a wall, approximately one metre high, separating the toilet from the rest of the cell but there was no door. There was a small window about one metre from the ceiling which let in some measure of light. There was a fluorescent light in the ceiling which, though dim, was functioning. Directly above each toilet was a tap of running water which emptied into the toilet hole. There was no toilet paper, no soap, no wash basin, no bathing facilities and no drinking water. A detainee would have to drink from the tap right above the open toilet hole. The flushing mechanism for the toilet was located outside the cell and the toilets were flushed at the convenience of the police.

In addition to the Court's observations above, the established facts were that the applicants, women, were made to remove their brassieres and shoes and to place them in a bag with their other belongings. The court was shown a canvas bag of the type used by the applicants and noted that it, as well as the others observed to be hanging nearby, was dirty probably by reason of use by other detainees. Established also was the fact that the applicants were made to walk barefoot to and in the cell. There were sixteen detainees including the applicants in the cell which was meant to accommodate six people. Only three blankets were provided for use by the sixteen occupants of the cell. The applicants were provided with no food or drinking water, no toilet paper or soap. The occupants of the cell were unable to flush the toilet after use, having to depend on the pleasure of the police to flush it from outside….,.

THE FAILURE TO PROVIDE SANITARY PROVISIONS FOR MENSTRUATING WOMEN

The applicants were alive to the fact that on them rests the onus of establishing that they were treated in a discriminatory manner.

Counsel for the applicants submitted that the discharge of the onus which lay on the applicants had been facilitated by the admission by the second respondent that the police do not provide sanitary provisions for menstruating women.

That is not so.

While the idea would appear to be abhorrent that sanitary provisions are not afforded to women in custody, the applicants do not allege that they were menstruating and were refused sanitary provisions by the police. They simply allege that no such provisions are made for women generally. But section 24(1) of the Constitution does not allow the applicants to be torchbearers for women in general. The applicants have to show that there has been a violation of the declaration of rights in relation to themselves.

This, they have failed to do, and, accordingly no violation of the applicants' rights under this head has been established.

THE ORDER TO REMOVE THEIR BRASSIERES

The applicants further contend that the order to remove their brassieres was discriminatory.

The respondents submit that in requiring them to remove their brassieres, they were acting in terms of section 41 of the Criminal Procedure and Evidence Act [Chapter 9:07] which states as follows:

“41 (1)…,.

(2) A peace officer or other person arresting any person under this Part may search that person, and shall place in safe custody all articles, other than necessary wearing apparel, found on him.”…,.

They contend that a woman's brassiere is not 'necessary wearing apparel' as contemplated by the Criminal Procedure and Evidence Act [Chapter 9:07]. They aver that in some places women go about bare-breasted.

The applicants, who are all women, aver, on the contrary, that a brassiere is, for them, a necessary piece of intimate wearing apparel.

I am unable to accept the contention by the respondents that brassieres do not fall within the class of necessary wearing apparel for women. It was submitted, on behalf of the applicants, that to oblige them to remove such undergarments was to subject them to discriminatory treatment. The submission is not without merit. It seems to me that the blanket application of the requirement that each detainee is allowed one layer of clothing and one undergarment ignores the fact that the applicants, being women, have, by reason of their sex, personal needs which differ from that of men and has resulted in discrimination against the applicants, who, by virtue of their biological make-up, have need of two undergarments.

The applicants have in our view established that their right enshrined in section 23 of the Constitution to protection against discrimination has been violated.

THE RIGHT TO BE PROTECTED AGAINST TORTURE OR CRUEL AND INHUMAN PUNISHMENT OR TREATMENT

Section 15(1) of the Constitution of Zimbabwe provides:

“15 PROTECTION FROM INHUMAN TREATMENT

(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.

(2) No treatment reasonably justifiable in the circumstances of the case to prevent the escape from custody of a person who has been lawfully detained shall be held to be in contravention of subsection (1) on the ground that it is degrading.”

Section 15, therefore, proscribes torture, inhuman punishment, degrading punishment, inhuman treatment, degrading treatment. See S v Ncube & Ors 1987 (2) ZLR 246 (SC)…,.

Many decisions of this Court have dealt with the issue of what constitutes inhuman or degrading treatment. See for example S v Ncube & Ors 1987 (2) ZLR 246 (SC); Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04; Jestina Mukoko v The Attorney General SC11-12.

In Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04, this Court declared that the applicants were subjected to inhuman and degrading treatment. It found that the holding cells in which the applicants had been detained overnight at Highlands Police Station and Matapi Police Station, respectively, fell short of the minimum standards of decency. It said, at page 10 and 11 of the cyclostyled judgment:

“I have no doubt in my mind that the holding cell that the court inspected at Highlands Police Station, the same holding cell in which Kachingwe was detained overnight, does not comply with elementary norms of human decency, let alone, comply with internationally accepted minimum standards. In particular, the failure:

a. To screen the toilet facility from the rest of the cell to enable inmates to relieve themselves in private;

b. To provide a toilet flushing mechanism from within the cell;

c. To provide toilet paper;

d. To provide a wash–basin; and

e. To provide a sitting platform or bench;

constitute inhuman and degrading treatment prohibited in terms of s15(1) of the Constitution. The evidence clearly establishes that Chibebe was subjected to similar treatment.”

The remarks quoted above apply equally to the cells at Harare Central Police Station which were seen by the Court. That there was a sitting platform surrounding the toilet hole and a one metre wall separating the toilet from the rest of the cell is of little significance because there was no door and the one metre wall is inadequate to provide privacy to the users of the toilet.

Thus, the conditions experienced by the applicants in Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04 are little or no different from those experienced by the applicants in the instant case. In addition, the applicants shared the cell, which was made to accommodate six people, with thirteen others. It was not denied that no drinking water was available to the applicants. However, even assuming that the tap in the cell was meant to be the source of drinking water for the occupants of the cell, the implications arising from the fact that the tap was positioned directly above, and emptied into, the toilet which could only be flushed from without, are too ghastly to contemplate.

The applicants in Nancy Kachingwe & Ors v Minister of Home Affairs & Anor SC145-04 were detained for one night. The position in respect of the applicants is aggravating in that they were detained in such degrading conditions for four days and forced to rely on relatives for food and drinking water. Detention for four or five nights in the conditions described by the applicants, in my view, constitutes a gross violation of the applicants' right not to be subjected to inhuman and degrading treatment.

Accordingly, I find that the applicants were detained in conditions that constitute inhuman and degrading treatment in violation of their right enshrined in section 15 of the Constitution.

REMOVAL OF BRASSIERES

The applicants averred that their brassieres are items of intimate under-clothing, and being forced to remove them was inhuman and degrading.

The respondents could only submit, in reply, that in some cultures women go about bare-breasted.

However, it would seem to me that the applicants are in a better position to comment on this issue. They have said how humiliated they felt, not only by being made to remove what were personal underclothing but also by being forced to place them in a dirty bag.

The question then is posed: Are these measures reasonably necessary to prevent the applicants' escape from custody?

Surely not.

Further, such treatment cannot be justified by the reasoning that the applicants might use these items of clothing to harm themselves - for then, any item of clothing can be turned into a weapon or an instrument for self-affliction or suicide.

Detention ought not to reduce the detainee to humiliation and indignity. Every detainee is entitled to be treated with some modicum of decency and respect. The order to the applicants to remove their brassieres caused them great humiliation. Such treatment meted out to the applicants cannot be said to be reasonably necessary to prevent their escape - which is the only derogation allowed by section 15 of the right enshrined therein.

Accordingly, the applicants have established, in this regard also, that their right enshrined in section 15, not to be subjected to cruel and inhuman and degrading treatment, has been violated by the respondents.

REMOVAL OF SHOES

The applicants averred that they were made to walk barefoot on dirty floors.

The respondents deny that the floors were dirty and based their denial on the fact that Standing Orders require the floors to be cleaned.

However, the respondent admits that there were sixteen persons, including the applicants, detained in one cell which is meant for six people. It is admitted, also, that the toilet in the cell is only flushed at the pleasure of the police from outside. The cells are cleaned only once a day during the detained persons daily exercise period of 30 minutes. In these circumstances, the probabilities are that the floor of the cell did become wet with human waste as deposed to by the applicants.

To require the applicants to walk barefoot in such unsanitary conditions is to subject them, in my view, to inhuman and degrading treatment.

THE ORDER SOUGHT

The applicants premised their argument on the fact that the conditions experienced in the police cells amounted to a violation of their right to the protection of the law enshrined in section 18.

Having found the treatment experienced by the applicants to amount to a violation of sections 15 and 23 we do not consider it appropriate or necessary to grant the declaratur sought in this regard.

SEIZURE OF CELLPHONES

The papers establish that personal possessions of detainees are taken on detention and stored pending their retrieval on the release of the detainee.

No breach of an enshrined right has been shown in this regard.

Suffice it to say that a claim for any damages suffered as a result of such seizure may be made in the appropriate forum.

CONCLUSION

The applicants have established that their rights enshrined in sections 15 and 23 of the former Constitution of Zimbabwe were violated by the respondents. We consider the following order to be appropriate:

ORDER

It is declared:

1. That the applicants' rights, in terms of section 23 of the Constitution of Zimbabwe, not to be discriminated against, have been violated.

2. The applicants' rights, in terms of section 15 of the Constitution, to protection from inhuman and degrading treatment, have been violated.

Consequently, it is ordered that:

1. The first and second respondents are directed to take all necessary steps and measures within their power to ensure that at Harare Central Police Station:

a. The holding cells shall have clean and salubrious flushing toilets with toilet paper and a washing bowl.

b. The flushing toilets shall be cordoned off from the main cell to ensure privacy.

c. A good standard of hygiene shall be maintained in the holding cells.

d. Every person detained in police custody overnight shall be furnished with a clean mattress and adequate blankets.

e. Adequate bathing facilities shall be provided for all persons detained in custody overnight.

f. Every person detained shall have access at all times to wholesome drinking water from a source other than the tap above the toilet.

g. Women detained in police custody shall be allowed to keep their undergarments, including brassieres, and to wear suitable footwear.

2. There shall be no order as to costs.

CCC08-16 : OBEDIAH MAKONI vs COMMISSIONER OF PRISONS and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and CHITAKUNYE AJCC

The Commissioner of Prisons accepts that prison conditions in Zimbabwe are not ideal due to current economic hardships. However, they meet the requisite needs of prisoner correction and rehabilitation.At any rate, poor prison conditions cannot be relied upon to escape criminal liability….,.Counsel for the applicant contends that conditions in our ...

At any rate, poor prison conditions cannot be relied upon to escape criminal liability….,.

Counsel for the applicant contends that conditions in our prisons are so deplorable as to be intolerable and that fact in itself renders a life sentence in contravention of the fundamental rights of whole life prisoners. Counsel for the respondents accepts that prison conditions are not perfect but counters that this alone cannot be a ground for holding a life sentence to be inhuman and degrading.

In Kachingwe & Others v Minister of Home Affairs & Another 2005 (2) ZLR 12 (S), the Supreme Court had occasion to inspect the conditions in police holding cells at Highlands Police Station. It was held that detention under those conditions amounted to inhuman and degrading punishment in violation of section 15(1) of the former Constitution.

Counsel for the applicant argues that the conditions in Chikurubi Prison, as described by the applicant, are not dissimilar to those obtaining in Kachingwe & Others v Minister of Home Affairs & Another 2005 (2) ZLR 12 (S) and should therefore be similarly denounced by this Court….,.

The principal international instrument on the regulation of prisons is contained in the Standard Minimum Rules for the Treatment of Prisoners, which were adopted by a United Nations Congress in 1955 and subsequently approved by its Economic and Social Council in July 1957 and May 1977. The preamble to the Rules makes it clear that they are not intended to detail a model system of penal institutions. Rather:

“They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.”

In relation to prisoners under sentence, the guiding principles are set out in Rules 56 to 64. In summary, they emphasise the following tenets:

(i) The prison system should not aggravate the suffering inherent in the deprivation of liberty;

(ii) The prisoner should be able to lead a law-abiding and self-supporting life upon his return to society;

(iii) The institution should seek to address the individual treatment needs of the prisoners;

(iv) The institution should respect the dignity of prisoners as human beings;

(v) Steps should be taken to ensure for the prisoner a gradual return to life in society;

(vi) The treatment of prisoners should emphasise not their exclusion from the community, but their continuing part in it;

(vii) The institution should detect and treat any mental or physical illnesses or defects that hamper a prisoner's rehabilitation;

(viii) Institutions should endeavour to achieve the individualisation of prisoner treatment.

On 17 December 2015, the General Assembly adopted Resolution 70/175, titled the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). The 2015 Rules are designed to revise the original 1957 Rules so as to reflect recent advances in correctional science and best practices as well as major developments in human rights and criminal justice since 1957. The 2015 Rules pertaining to prisoners under sentence, i.e. Rules 86 to 90, are essentially similar to those contained in the precursor 1957 Rules. However, in the section dealing with rules of general application, the 2015 Rules incorporate certain basic principles that are novel in their emphasis on human dignity and the need to safeguard that dignity through appropriate corrective measures. In particular, Rules 1 and 4 state as follows:

“1. All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.

4. The purposes of a sentence of imprisonment or similar measures deprivative of a person's liberty are primarily to protect society against crime and to reduce recidivism. These purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.”…,.

In normative terms, the Standard Minimum Rules of 1957 are generally considered to be “soft law” and cannot be equated to obligations under a treaty or convention. The same applies to the successor Rules of 2015. As such, they are not legally binding on member States of the United Nations. Nevertheless, the general consensus amongst States is that they are highly persuasive in influencing and regulating the treatment of prisoners and the administration of penal institutions generally. They are regarded as being the primary source of standards relating to treatment in detention and as the key framework used by monitoring and inspection mechanisms in assessing the treatment of prisoners.

Some of the principles embodied in the 1957 and 2015 Rules are now recognised and replicated in section 50 of the Constitution which elaborates the rights of arrested and detained persons. Thus, in terms of section 50(1)(c), any person who is arrested 'must be treated humanely and with respect for their inherent dignity.' More specifically, section 50(5)(d) provides that any person who is detained, including a sentenced prisoner, has the right 'to conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment.'

Very significantly, section 50(8) stipulates that 'an arrest or detention which contravenes this section, or in which the conditions set out in this section are not met, is illegal.'

HMA57-18 : THE STATE vs BEN CHITALU
Ruled By: MAWADZE J and MAFUSIRE J

It is important for magistrates to appreciate the current harsh and difficult conditions in our prisons. In the premises, only deserving persons should be sent to prison.

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

A factor which weighs heavily in favour of the accused is the prima facie unreasonable delay in bringing this case to trial.The defence counsel did not invoke the provisions of section 167A of the Criminal Procedure and Evidence Act for the court to enquire on the delay.Be that as it ...

HB127-17 : THE STATE vs GLADYS MUTOPA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused is found guilty of culpable homicide....,.SentenceThe mitigating factors of this case far outweigh the aggravating features.The court would be failing in its duty if it lost sight of the weighty mitigating factors that have been placed before the court.The matter has taken an inordinately long time to finalise. ...

HMA01-16 : THE STATE vs KINGDOM HLAHLA
Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and GWERU

In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

HHH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

Section 81(1) of the Constitution spells out the rights of a child which throws light on what the court should consider in upholding the best interests of a child. It provides as follows;“81(1) Every child, that is to say, every boy and girl under the age of eighteen years, has ...

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

The accused suffered pre-trial physical punishment in police custody and mental anguish in prison custody, as they awaited the conclusion of their trial; both of which are also highly mitigatory....,.I agree with counsel for both accused persons, and the State, that, their mitigatory features, especially the long pretrial incaceration and ...

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

CCC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

This is an application for direct access to the Constitutional Court made in terms of section 167(5)(a) of the Constitution of Zimbabwe. The allegation is that the conduct of the respondents violated the applicant's fundamental rights as enshrined in sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.The BackgroundThe brief ...

The Background

The brief facts of the matter are as follows:

In 2017, the applicant was arraigned before the magistrates court at Harare facing charges of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Three separate trials were held before the first, second, and third respondents and he was convicted and sentenced to three separate terms of imprisonment.

It is the applicant's allegation, that, during the conduct of the trial proceedings, the first and second respondents violated his right to legal representation because they did not advise him of that right at the commencement of the trial.

This is alleged to be a violation of section 70(1)(d), (e) and (f) of the Constitution.

In the same respect, it is also alleged, that, the first and second respondents “failed to take heed to the laws governing the commencement of criminal trials” and therefore violated section 163A(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act).

It is further alleged, that, such conduct infringed the applicant's right to a fair trial as entrenched in section 69(1) of the Constitution.

As regards the third respondent, it is averred, that, the magistrate did advise the applicant of his right to legal representation in terms of section 191 of the Criminal Procedure and Evidence Act, but, then failed to make an enquiry as to whether or not the applicant had understood those provisions.

This is said to have led to unfair proceedings in violation of sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

Allegations are also made against the fourth respondent in that it failed to assist the applicant in protecting his fundamental rights as aforementioned.

Consequent to these alleged violations, the applicant has approached this Court for relief.

The application is opposed by the fourth respondent.

It contends, that, the applicant has not demonstrated, that, it is in the interests of justice that he be granted direct access to the court. It is also argued, that, the mere reference to constitutional provisions does not mean that a constitutional matter has been raised.

It is important to note, that, the fourth respondent concedes that the proceedings before the first, second, and third respondents were irregular, but, nevertheless, avers that competent relief could have been granted by the High Court or the Supreme Court thus obviating the need to approach the court directly.

In fact, it is alleged that the applicant has since approached the High Court for relief under Case No. HC7066/20.

It is prayed that the application be dismissed as it is without merit....,.

Irregularities before the Magistrates Court

There is a further disconcerting aspect of this matter that we think it necessary to comment upon before it is disposed of.

This relates to the mandatory provisions of sections 163A and 191 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP&E Act) which enjoin the courts, in criminal cases, to advise accused persons of their right to legal representation at the commencement of criminal trials.

The nub of the applicant's case is that the first and second respondents violated this crucial procedural requirement and thereby denied him the right to proper legal representation.

As for the third respondent, it is averred, that, he did advise the applicant of this right but then failed to make the further enquiry as to whether or not the applicant had understood the import of the governing provisions.

The fourth respondent quite correctly concedes, that, in the trials before the first and second respondents there was no compliance with section 163A of the Criminal Procedure and Evidence Act (CP&E Act). The State also concedes, that, the third respondent failed to record the exchange with the applicant pertaining to his right to legal representation and his comprehension or otherwise thereof.

It is openly acknowledged by counsel for the fourth respondent, that, these omissions, on the part of the first, second, and third respondents, constituted gross irregularities.

Nevertheless, the State appears to have displayed a dogged reluctance to take heed of these irregularities or the applicant's justifiable grievances in that regard.

Regrettably, unlike the High Court and the Supreme Court, this Court is not presently endowed with any statutory powers of review that might be invoked and exercised mero motu to address or redress these patent irregularities.

Nevertheless, we think it necessary, in the interests of justice, to bring them to the attention of the Judge President to enable him to refer the matter to a judge of the High Court for review.

The Registrar of this Court is accordingly directed to submit a copy of this judgment to the Judge President for appropriate action to be taken.

CCC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

This is an application in terms of section 85(1)(a) of the Constitution of Zimbabwe.The appellants allege that their constitutional rights, as enshrined in sections 70(1(b), 70(1)(d) and 70(1)(c), have been violated through the manner in which criminal proceedings against them were conducted in the Magistrates Court sitting at Chivhu.They seek ...

This is an application in terms of section 85(1)(a) of the Constitution of Zimbabwe.

The appellants allege that their constitutional rights, as enshrined in sections 70(1(b), 70(1)(d) and 70(1)(c), have been violated through the manner in which criminal proceedings against them were conducted in the Magistrates Court sitting at Chivhu.

They seek an order that the proceedings be quashed and a trial de novo ordered before a different magistrate.

IN LIMINE

The respondents raise a point in limine to the effect, that, the applicants are not properly before this Court.

They contend, that, the applicants should have approached this Court through a referral of the matter to it by the Magistrates Court in terms of section 175(4) of the Constitution. This is in view of the fact that the constitutional issue upon which the application is premised arose during the course of proceedings in the Magistrates Court.

It is not in dispute, that, the applicants took the opportunity availed by a postponement, granted by consent in the Magistrates Court proceedings, to approach this Court directly.

Section 175(4) of the Constitution reads as follows:

“Powers of courts in Constitutional Matters

“175(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must, refer the matter to the Constitutional Court unless he or she considers the request merely frivolous or vexatious.”

It is the respondents contention, in light of this provision, that, the applicants failure to approach this Court in terms of section 175(4) of the Constitution was 'fatal' to the application.

Section 85(1) of the Constitution provides as follows:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely -

(a) Any person acting in their own interest;

(b)…,.

(c)…,.

(d)…,.

(e)…,.
is entitled to approach a court alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed and the court may grant appropriate relief including a declaration of rights and an award of compensation.”…,.

The word “court” is not defined in section 332 of the Constitution, but, in the context in which it is used, appears to include the Constitutional Court.

It seems to me therefore, that, on a strict, literal reading of section 85(1)(a) of the Constitution, it could be argued, as the appellants briefly do in casu, that, beyond what is expressly stated therein, the wording does not place any restrictions on the type of person who may approach the Constitutional Court directly.

Firstly, the section is not prefixed with the words 'subject to…; or 'save as otherwise provided in terms of…,.'

These phrases are normally used in legislative drafting parlance to indicate that the provision in question does not have unfettered application but is to be applied only to the extent that it does not contradict the specific other provisions mentioned.

This is clearly not the case in casu.

Secondly, the applicants are clearly acting in their own interest, and are alleging a violation of their fundamental rights.

Thirdly, and more specifically, it could be argued, that, section 85(1) of the Constitution does not expressly exclude a direct approach to this Court where the violations alleged were perpetrated in the course of proceedings in a lower court.

This situation is to be contrasted with some provisions of section 24 of Zimbabwe's old Constitution, which effectively are the precursor to some parts of both sections 85 and 175 of the current Constitution.

Section 24 read as follows in relevant parts:

“24. Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provision of subsection (3), apply to the Supreme Court for redress.

(2) If, in any proceedings in the High Court, or in any court subordinate to the High Court, any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.

(3) Where in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court then, without prejudice to the right to raise that question or any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”…,.

In interpreting section 24(3) and its effect, a number of authorities ruled, that, it rendered the provisions of section 24(2) mandatory. In other words, any constitutional issue that arose during proceedings in a lower court, had to be referred to the Supreme Court (sitting as a Constitutional Court) in terms of section 24(2).

Section 175(4) of the current Constitution is an exact replica of the old section 24(2).

It was, for instance, held by MALABA JA…, in Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) as follows;

“It is the duty of the party who wants a question as to the contravention of the Declaration of Rights arising in the proceedings in the High Court, or in a court subordinate to it, referred to the Supreme Court for determination, to ensure compliance with the provisions of section 24(2). The requirement to comply with the procedure prescribed thereunder is made mandatory by the provision of section 24(3).”

In the earlier case of Jesse v Attorney General 1999 (1) ZLR 121 (S), GUBBAY CJ…, had similarly stated as follows;

“Put differently, the question is whether an applicant may, during the course of proceedings in the High Court, as in any court subordinate to it, simply ignore the provisions of section 24(2), and utilise the procedure laid down in section 24(1). I entertain not the slightest doubt that the resort by the applicant to section 24(1) of the Constitution was impermissible.”

GUBBAY CJ went on to dismiss the application before him, for contravening section 24(3) of the Constitution.

It is thus evident, that, the application in casu would have been declared impermissible, and/or been dismissed, had it been brought in terms of the old section 24(1).

It should be noted, however, that, in the case of Martin v A-G & Anor (1993) (1) ZLR 153 (S) it was held, that, an exception to this general rule would arise in the situation where a lower court denied an application for referral in terms of section 24(2) of the old Constitution, for reasons other than those permitted under section 24.

See also Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S).

In that case, the refusal to refer the matter to the Supreme Court was found to have been premised on a misunderstanding, by the Magistrates Court, of the meaning of the phrase 'frivolous or vexatious'. The court held, that, in such circumstances, the unsuccessful applicant was entitled to approach the Supreme Court directly in terms of section 24(1).

While this is not the situation that the case at hand is concerned with, it is nevertheless pertinent to note, that, an applicant, such as the one in Martin v A-G & Anor (1993) (1) ZLR 153 (S), would have had to initially make his application for referral to a lower court.

The last argument that could conceivably have been raised against a finding that the application in casu should suffer the same fate is that, despite subsection 175(4) repeating word for word, section 24(2) of the old Constitution, the section that followed it, that is section 24(3), was not similarly imported into section 175 of the current Constitution.

This is the subsection that the authorities cited above interpreted as outlawing a direct approach to the Supreme Court. In addition to this, reference to the same subsection, in the old section 24(1) also failed to find its way into the new Constitution.

The sum total of all this, it appears to me, could be interpreted as evincing an intention, by the Legislature, to remove completely any “bar” that an applicant in terms of section 24(1) might have confronted, arising from the fact that the constitutional issue in point arose during proceedings in a lower court.

It could further be interpreted as creating the impression, that, the options for redress that were open to an applicant envisaged in the old sections 24(2) (now section 175(4)) and 24(3) have been widened.

The critical questions that then arise, against this background, are:

1. Has the absence of restrictive provisions in both section 85 and section 175(4) (particularly the former), opened the door very widely, and given unfettered, direct access to the Constitutional Court, to any person who claims an existing, current, or impending violation of their constitutionally guaranteed fundamental rights?; and

2. Was this the intention of the Legistature?

These questions, in my view, can only be answered on a proper consideration of relevant rules governing the interpretation of statutes, generally, and of the Constitution in particular.

In this respect, it is pertinent to note, that, a Constitution is itself a statute of Parliament. Therefore, any rules of interpretation that are regarded as having particular relevance in relation to constitutional interpretation, can only be additional to the general rules governing the interpretation of statutes.

The starting point, in relation to the interpretation of statutes generally would be what is termed 'the golden rule' of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand & Others v Bryant 1995 (3) SA 761 (A)…,.;

“According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnancy or inconsistency with the rest of the instrument.”…,.

In his book 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed. At page 57, E A KELLAWAY echoes this statement as follows:

“The dominating Roman-Dutch law principle is that an interpretation which creates an absurdity is not acceptable (that is 'interpretatio quae parit absurdum non est admittenda): see, among other authorities, Exparte Fourie 1962 (3) SA 614 (O); S v Nyathi 1978 (2) SA 20 (B); and Canca v Mount Free Municipality 1984 (2) SA 870 (TK) 833).”

The learned author, at page 62, further states:

“Even if a (South African) court comes to the conclusion that the language is clear and unambiguous, it is entitled to reject the purely literal meaning if it is apparent from the anomalies which flow therefrom that the literal meaning could not have been intended by the legislature.”…,.

Apposite to the circumstances of this case, the learned author, after considering a number of authorities, makes the following remarks at page 61:

“While it is not permissible to speculate as to the purpose of an enactment, the legislative purpose may be sought from the subject matter of the Act, the enacting clauses in the whole enactment, the state of the law before the enactment was passed, and the surrounding circumstances: see Hunter v R 1907 TS 910; Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530;”…,.

And, lastly, at page 293, in reference to the maxim 'in pari materia' the learned author states:

“According to Roman-Dutch law, a later enactment not clear as to its meaning, which has analogous provisions with regard to, or clauses corresponding with, an earlier enactment, and particularly where the later enactment deals with the same subject matter, should, where feasible, be so interpreted that both provisions cohere, so that the contents of the earlier one can throw light on the later, unclear provision: see, among other authorities, Brink v Alfred McAlpine & Sons South Coast Regional Rent Board 1971 (1) SA 741 (A); Durban City Council v Shell and BP SA Petroleum Refineries (Pty) Ltd 1971 (4) SA 466.”

The principles set out in the dicta cited above can aptly and instructively be summarized as follows:

(i) The Legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment.

(ii) Therefore, in order to ascertain the true purpose and intent of the Legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect.

(iii) In this respect -

(a) The words in question must be capable of an interpretation that is 'consistent' with the rest of the instrument in which the words appear;

(b) The state of the law in place before the enactment in question is a useful aid in ascertaining the legislative purpose and intention; and

(c) Where an earlier and later enactment (or provision) deals with the same subject matter, then, in the case of uncertainty, the two should be interpreted in such a way that there is mutual consistency.

Turning now to the additional considerations that are particular to the interpretation of the Constitution, I find the following dictum from the Namibian case of Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (Nm) to be both apposite and instructive;

See also, among others, Rattigan v Chief Immigration Officer & Others 1994 (2) ZLR 54 (S); Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe 2003 (2) ZLR 236.

“…, The whole tenor of Chapter 111 (of its Constitution) and the influence upon it of international human rights instruments from which many of its provisions were derived, call for a generous, broad, and purposive interpretation that avoids the austerity of tabulated legalism.”…,.

These remarks are echoed in the following summation by the learned author EA KELLAWAY 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed…,.;

“The principle of interpretation of a state's Constitution, incorporating a bill of rights, may be stated thus:

An interpreter should follow the submitted triple synthesis of literalism, intentionalism, and purposiveness principle, as is done in the interpretation of any other statute….,.”

Thus, while a Constitution is to be interpreted in accordance with the rules relating to statutes, generally, the authorities suggest, that, a court called upon to interpret such a Constitution should give a generous and purposive construction to its provisions, particularly the entrenched fundamental rights and freedoms.

It appears to me, that, in this process, the purpose of the provision in question is to be given particular attention.

When all this is applied to the circumstances of this case, there is, in my view, no gainsaying the fact, that, a literal and grammatical meaning ascribed to section 85(1) would be inconsistent with section 175(4) of the Constitution.

This is to the extent, that, such meaning would give room to litigants, in proceedings underway in a lower court, to abandon such proceedings midstream, and, without any ceremony, in order to approach the Constitutional Court directly in terms of that section.

Such a meaning would thus introduce an absurdity and possible chaos to a process, that, in terms of the more expansive section 24 of the old Constitution, was free of such anomalies.

It is evident, that, the purpose of the old section 24, and, in particular, subsections (1) (2) and (3), was to inject order and certainty into the process by which constitutional issues arising during proceedings before the lower courts, were referred to the Constitutional Court order in the sense, that, the lower court had the opportunity to call and hear evidence on, and consider, the issue so as to determine whether it is not frivolous or vexatious.

Only then did the court refer the issue to the Constitutional Court.

Through this process, the Constitutional Court was shielded from a situation where frivolous and undeserving cases might have been directly brought to it.

There was certainty in the process in that the lower court, where it referred the matter, was fully informed as to both the reason for, and the effect of, such referral. The effect would be a formal deferment of the proceedings in that court, pending a Constitutional Court determination of the issues referred to it. More importantly, the risk of parallel proceedings being pursued in the Constitutional and the lower courts, on different aspects of the same case, but based on the same facts, was obviated.

It should be noted, that, the case at hand is an example of the absurdity that may arise from a strict, literal construction of section 85(1) of the Constitution.

The proceedings in the Magistrates Court were postponed by consent of the parties. The next thing that happened was a direct application to this Court, in which aspects of those proceedings are being impugned.

There is nothing on the record to suggest that the Magistrates Court was made aware of this development, or, if so, through what procedure and to what effect.

It may therefore be safe to assume, that, the lower court is still in the dark in this regard.

Further to this, it appears from the facts of the case, that, evidence should have been led in the lower court to enable the magistrate to determine whether or not the case merited a referral to the Constitutional Court.

The end result is that the latter court is seized with a matter that might not only have required viva voce evidence to be led, but may, for all intents and purposes, have been ruled frivolous or vexatious by the magistrate.

This Court is not able to call and hear viva voce evidence from the parties, and would thus be handicapped in terms of properly determining the matter.

I therefore entertain no doubt, that, the certainty order referred to above would be completely eroded were the courts to operate on the basis of a literal and grammatical interpretation of section 85(1) of the Constitution.

This circumstance is not only highly undesirable, it would also constitute an affront to the time honoured common law principle, that, a superior court should be slow to intervene in ongoing proceedings in an inferior court - except in exceptional circumstances.

This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A):

“…,. A superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but, would do so in rare cases where grave injustice might otherwise result or where justice might not, by other means, be attained.”

It seems to me, that, the ratio in the cases of Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) and Jesse v Attorney General 1999 (1) ZLR 121 (S)…, was a re-affirmation of this principle, and that it found fortification in section 24(3) of the old Constitution.

Despite this 'fortification' not having found its way into the new Constitution, I am satisfied that the basic principle remains.

It is, in any case, trite that, a statute should, where possible, be construed in conformity with the common law rather than against it, except where the statute is clearly intended to alter the common law: see Johannesburg Municipality v Cohen's Trustees 1909 TS 811.

I do not find anything in the wording of section 85(1(a) of the Constitution that could be said to evince an intention to oust common law on the issue in point.

Sections 85(1) and 175(4) of the current Constitution and section 24 of the old Constitution, all deal with the same subject matter; that is, the methods by which matters may be brought to the Constitutional Court.

To that extent, I am satisfied no basis exists for interpreting the later provisions in such a way that they do not 'cohere' with the earlier provisions.

In other words, the provisions of the old section 24 should be taken as 'throwing light' on the provisions of section 85(1)(a) and 175(4) of the current Constitution.

I find, when all is told, that, the above expose and analysis of the law and authorities on statutory interpretation clearly favour a finding, in casu, that it was not the intention of the Legislature to oust a procedural regime that ensured order and certainty in the administration of justice in the courts, and to introduce in its place, one that would result in absurdity, disorder, and ambiguity.

Clearly, the anomalies that would flow from a literal meaning of section 85(1)(a) could not have been intended by the Legislature.

Consequently, and, except in circumstances akin to those in Martin v A-G & Anor 1993 (1) ZLR 153 (S), any constitutional issue that arises during proceedings in a lower court ought to and must be brought to this court only upon referral in terms of section 175(4) of the Constitution.

It follows from this, that, the instant application is not properly before this Court.

In the final result, I find that the point in limine raised by the respondents has merit and ought to be upheld.

In the result, it is ordered as follows:

1. The point in limine raised by the respondents be and is hereby upheld.

2. The application is struck off the roll.

3. There shall be no order as to costs.

CCC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

At all times, courts must conduct their affairs in such a way that the court's open-mindedness, its impartiality, and fairness are manifest to all those who follow the proceedings and review the outcome....,.The law provides, in section 69(2) of the Constitution, that, in the determination of their civil rights and ...

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

CCC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicant sought an order in terms of the draft. The applicant and the fourth respondent (the Prosecutor General) consent to an order of the Court in terms of the draft order, as amended.

The third respondent's position (the Commissioner General of Police, Zimbabwe Republic Police) is that he will abide by the decision of the Court.

The first and second respondents (Sergeant Chacha and the Zimbabwe Anti-Corruption Commission) 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.

HMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

The accused, who resides in Village 25, Chief Sengwe, Chiredzi, is facing two counts.

In Count 1, the accused is facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], in that, on 18 June 2015, at Gonowani Village, Headman Mpapa, Chiredzi the accused stabbed the now deceased, Stephen Chikucha, with an unknown sharp object in the chest causing his death.

In Count 2, which relates to attempted murder, defined in section 189 as read with section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it is said, that, on 29 June 2015, at Murengwami Village, Headman Mpapa, Chief Sengwe, Chiredzi the accused attempted to kill Onias Chibhombise by stabbing him with an okapi knife in the neck.

The accused totally denies the charges in both Counts. In fact, the accused said he was unknown to both the now deceased in Count 1 and the complainant in Count 2. The accused said he does not even know the alleged crime scenes in both Counts.

As regards Count 2, of attempted murder, the accused said, at the time the alleged offence was committed, he was at his residence with his parents and nowhere near the crime scene.

During the State case, the prosecutor led evidence from Beauty Aleck in Count 1; Onias Chimbombise, complainant in Count 2; Amos Chinherera in both Counts 1 and 2.

The evidence of John Makondo, Dr Tungamira Isaac Rukatya and Dr Mutengerere was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

It was during the evidence of D/Assistant Inspector Victor Chinoni (D/Assistant Inspector Chinoni) that counsel for the State sought to produce the accused's unconfirmed warned and cautioned statement and counsel for the accused objected.

The basis of counsel for the accused's objection was that the said unconfirmed warned and cautioned statement was inadmissible on the basis that it was improperly obtained.

Counsel for the State submitted, that, she intended to rely on this statement in the prosecution case and proceeded to apply to conduct a trial within a trial.

This judgment, therefore, solely concerns itself with a trial within a trial in order to determine the admissibility of the unconfirmed warned and cautioned statement made by the accused.

This statement in issue was made during video recording.

In order to determine its admissibility, the court had to watch, in camera, the recorded video. The written statement was not obviously produced at this stage. Further, in view of the nature of the State case, I decided to watch the video recording and make a determination in the absence of the learned Assessors Messrs CHADEMANA and MUSHUKU.

During the trial within a trial, the State led evidence from D/Assistant Inspector Victor Chinoni (D/Assistant Inspector Chinoni) who recorded the statement in issue, D/Sgt Thulisani Moyo who witnessed the recording of the warned and cautioned statement, and D/Cst Benard Chimbeke who operated the video camera.

The accused gave evidence.

Before dealing with the evidence led during the trial within a trial, I shall briefly discuss the law in relation to unconfirmed extra curial statements and their admissibility.

THE LAW

The rights of an arrested and detained person are provided for, inter alia, in section 50; section 52(a); and section 70(3) of our Constitution.

In brief, section 50 of the Constitution provides for the rights of an arrested and detained person; section 52(2)(a) protects any person from all forms of violence whether from public or private sources. In terms of section 53 of the Constitution, no person shall be subjected to physical or psychological torture, or to cruel or, inhuman or degrading treatment or punishment. Section 70 deals with the rights of any person accused of any offence, and, specifically, section 70(3) provides as follows:

“(3) In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interests.”

Section 50(1)(c) of the Constitution requires that an accused person be treated humanely and with respect for their inherent dignity. In terms of section 50(4)(c), an accused person has a right not to be compelled to make a confession or an admission.

All these are fundamental rights this court is enjoined to protect during criminal proceedings, and, as provided in section 86(3) of the Constitution, some of these rights are non-derogatory rights and may not be limited or violated.

Section 256 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals with the admissibility of confessions or statements made by an accused person.

It is important to note, that, this relates to either written, oral, tape, video recorded or statements made in other forms: see S v Nkomo & Anor 1989 (3) ZLR 124F–125A.

The essential requirements of admissibility of such an accused's statement or confession is that it should have been made freely and voluntarily without the accused being unduly influenced thereto.

It is beyond the scope of this judgment to discuss what is undue influence. I shall therefore limit myself to what the accused alleges was done to him to compel him to give the warned and cautioned statement in issue.

Suffice to mention, that, generally, undue influence entails anything repugnant to fairness and the fundamental principles upon which our criminal justice system is based. These include, inter alia, improper manner of questioning or interrogation which may be aggressive and unduly lengthy; unnecessary confrontation meant to bring pressure to bear upon an accused person; physical maltreatment or violations visited upon an accused person, or such threats; inducements like promised release from custody, special treatment, privileges or offers of reward or leniency; and denial of rights like access to legal representation or presence of a guardian where juveniles are involved.

Indeed, the list is endless, and each case depends on its own facts.

It is trite, that, the onus is on the State to prove, beyond reasonable doubt, that the statement an accused person alleges was improperly made is admissible: see R v Jacobs 1954 (2) SA 320 (A).

Lastly, I would hasten to point out that the nature of the statement (that is whether confirmed or unconfirmed) and the nature of an accused person's challenge determines whether a trial within a trial is necessary.

It should be borne in mind, that, a trial within a trial is held to establish a question of law, the admissibility of the challenged statement, and not a question of fact like whether an accused person made the statement or not. The latter is a factual issue which can be resolved by leading evidence in the main trial to establish whether the accused made the statement or not: see S v Shezi 1994 (1) SACR 575.

I now proceed to apply these principles in this case.

THE ACCUSED'S EVIDENCE

The unconfirmed extra curial statement the State seeks to rely upon is a written statement which the accused made during a video recording. The nature of the accused's challenge is that it was not made freely and voluntarily hence it is inadmissible.

It is common cause that an attempt was made by the police to have this statement confirmed at Chiredzi Magistrates Court and that it was not confirmed as a result of the accused's objections. What is critical to note, however, is that, at the Magistrates Court, the nature of the accused's objection or complainant in relation to this statement was that he had simply been “intimidated”.

In his Defence Outline, made during a trial within a trial, the accused said he only made the statement after being physically violated or assaulted. He said threats of further assault were made if he did not accede to the police's demands to admit to the charges. The accused, in that Defence Outline, went on to narrate the sequence of events:

(i) Firstly, the accused said he was assaulted by D/Assistant Inspector Chinoni and D/Sergeant Moyo on 2 July 2015 at Chikombedzi Police Station before being taken for indications.

(ii) Secondly, the accused said the police details forced him to admit to the charges, telling him that he had committed these offences for ritual purposes based on some alleged superstitious belief. The accused said he was forced to admit that he committed the offences in Counts 1 and 2 in order to extract human blood from the victims under the superstitious belief that such human blood would heal his back pains.

(iii) Thirdly, he said at the alleged crime scenes, in Count 1 and Count 2, he was further assaulted.

(iv) Fourth, the accused said in the morning when his statement was later recorded at ZRP Chiredzi, D/Assistant Inspector Chinoni and D/Sgt Moyo handcuffed him. Thereafter, he was forced to place his hands between his legs. A log was then put behind his elbows, which log was suspended on two desks. While in that painful position the accused said the two police details assaulted him under the feet and on his buttocks. He said the assault continued until, due to pain, he admitted to the charges in both Counts. The accused said that it was after this brutal assault, which culminated in his admission, and that the statement in issue was then video recorded.

I understand from this Defence Outline, that, the accused's contention is that this statement is inadmissible as it was improperly obtained contrary to the provisions of section 256 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Further, the accused is alleging that his constitutional rights were violated as he was compelled to make a confession or admission contrary to the provisions of section 50(4)(c) of the Constitution.

Lastly, the accused is alleging that this statement is improperly obtained evidence contrary to the provisions of section 70(3) of the Constitution and that its admission would render this whole trial unfair and not in the interests of the proper administration of justice.

When the accused took the witness stand, his version was as follows:

He said after being detained at ZRP Chikombedzi he first met the four CID details from Chiredzi on 30 June 2015 when they took him from the cells and interrogated him about the two Counts which he denied. Thereafter, he said an identification parade in relation to Count 2 was conducted.

He said his woes started soon after this identification parade.

The accused said the CID details said that he, the accused, was wasting time denying the offences when in fact he had been identified during the identification parade.

The accused said he was then physically violated as follows;

(a) At ZRP Chikombedzi he said D/Assistant Inspector Chinoni and D/Sgt Moyo hit him about twenty times under the feet after which they drove him to Chiredzi police station.

(b) The next morning, at ZRP Chiredzi, he was taken from the police cells and questioned about the two offences which he denied. He was again hit under the feet by D/Assistant Inspector Chinoni and detained. Later that day, he was taken for indications.

(c) During indications at the alleged crime scenes, he said D/Assistant Inspector Chinoni pulled out a firearm threatening to shoot him if he persisted in denying the offences and had to be restrained by D/Sergeant Moyo. At the alleged crime scenes, both D/Assistant Inspector Chinoni and D/Sergeant Moyo narrated to him how the offences in both Counts were committed after which he was forced to recite that account as he was video recorded. Thereafter, he was taken to his home in order to recover the knife used in the alleged commission of the offense and a brown jacket they alleged he was wearing despite that he had no such items. They returned to ZRP Chiredzi.

(d) The next day, at ZRP Chiredzi, on 3 July 2015, he was taken from the police cells and again asked about the offence which he denied. He was then handcuffed and positioned in the manner already explained in his Defence Outline after which both D/Assistant Inspector Chinoni and D/Sergeant Moyo severely assaulted him until he admitted to both charges. Thereafter, he was questioned and forced to narrate how he allegedly committed the offences, without any video recording being made, in the manner police had told him. He complied.

(e) After such compliance, the video recording of the warned and cautioned statement played in court was then done. The accused said he simply repeated what he police had told him to say. Thereafter, he was taken to court for confirmation proceedings.

(f) The accused said, at court, he naturally disowned the statement improperly obtained and showed the presiding Magistrate the injuries on his swollen hands caused by the handcuffs and also revealed that his feet were painful. The statement was not confirmed.

THE STATE'S EVIDENCE

The State led evidence from three CID details, D/Assistant Inspector Chinoni who recorded the statement; D/Sergeant Moyo who witnessed the recording of the statement; and D/Cst Bernard Chimbeke who took the video or recorded the proceedings on the video.

1. D/Cst Benard Chimbeke (D/Cst Chimbeke)

D/Cst Chimbeke said his task was to simply capture the proceedings of the recording of the warned and cautioned statement on the video. He disputed that any pressure or force was brought to bear upon the accused. He said the accused was never intimidated, assaulted, or forced to give the statement. He was also part of the CID details who took the accused from ZRP Chikombedzi to Chiredzi, a distance of about 120km.

No useful questions were put to him in cross examination.

2. D/Sgt Thulisani Moyo (D/Sgt Moyo)

D/Sgt Moyo is the investigating officer in both Counts but his role, in respect of the statement, was to witness its recording in writing and on video. He said, after the accused's rights were explained, the accused, whom he described as very co-operative, elected to give a statement. He too denied that the accused was intimidated, forced, assaulted, or threatened to give the statement. D/Sgt Moyo dismissed the accused's allegations of impropriety as false.

Under cross-examination, D/Sgt Moyo said he only later learnt that the accused had disowned the statement at court during confirmation proceedings alleging what the accused called “police intimidation”. He said they could not record the accused's warned and cautioned statement at ZRP Chikombedzi, where they went to collect the accused, as they had no video camera. He said the accused, at ZRP Chikombedzi, initially denied the charges but changed his version later at ZRP Chiredzi.

3. D/Ass Insp Victor Chinoni (D/Ass Insp Chinoni)

D/Ass Insp Chinoni is the detail who recorded the accused's statement and is implicated by the accused.

D/Ass Insp Chinoni said he is part of CID details who took the accused from ZRP Chikombedzi to ZRP Chiredzi. At Chiredzi, both D/Sgt Moyo and D/Cst Chimbeke witnessed the recording of the warned and cautioned statement. He said he properly warned the accused of his rights and the accused gave his statement freely and voluntarily. Thereafter, the accused read the statement and signed it. He disputed that the accused was coerced, forced, or assaulted.

Under cross examination, D/Ass Insp Chinoni explained that three are two discs; one for the recording of the warned and cautioned statement; and the other for indications, which indications were not part of the trial within a trial. He said he is not part of the police details who took the accused to court for confirmation proceedings.

D/Ass Insp Chinoni said after the accused disowned the warned and cautioned statement at court, alleging intimidation, he had to play the video recording to the Officer in Charge CID to show how he recorded the statement, which was typed electronically and video recorded.

I noted, that, D/Ass Insp Chinoni was a very impressive witness. Besides being an eloquent speaker, his attention to detail and knowledge of his work is excellent. The professionalism he exhibited in recording the warned and cautioned statement, as seen on the video, is commendable.

Indeed, counsel for the accused understandably found it difficult to cross examine him, let alone to make any in-roads into his evidence.

On the other hand, the accused impressed me also as a soft, smooth, and eloquent speaker. His unassuming demeanour may be misleading.

Be that as it may. this matter cannot be determined on eloquence alone.

ANALYSIS OF EVIDENCE AND FINDINGS MADE

I had the opportunity to view the video recording of the warned and cautioned statement. I did note, that, throughout the recording, the accused was allowed to tell his story, presumably in his own words, without any interruptions: see R v Shaube-Kuffler 1969 RLR 78 (A).

The accused's narration of events is detailed and lengthy.

In the circumstances, it is highly improbable that all that detail were words put in the accused's mouth which he memorised.

It is precisely for this reason that I had to watch the video recording of the statement.

I had a keen interest to observe if there were any signs that the statement was improperly obtained or not made freely and voluntarily. At this stage, I was not worried much about the contents of the statements per se but to assess the accused's demeanour.

I however noted that the statement is detailed.

While the statement is incriminatory, it is also exculpatory in that the accused emphasised that he had no intention to kill any of the victims.

Turning to the video recording, I noted the following:

(1) The accused's rights were well explained and the accused listened attentively. The accused, who then elected to give the statement, was allowed to, given an uninterrupted account and D/Ass Insp Chinoni only sought clarifications after the accused finished his explanation. As already said, the statement is quite lengthy.

(2) The accused gave a coherent, free flowing account in Shona.

(3) Before even giving the statement, the accused sought clarification, from D/Ass Insp Chinoni, on where to start, and he was allowed to start from wherever he believed was relevant.

(4) As the accused gave the statement, he was seated on a chair. Despite that his hands were handcuffed, the accused was gesturing using hands to emphasize whatever he was explaining. He commenced his account from the time he said he was in South Africa in order to give background information for his alleged conduct.

(5) The accused articulated the dates, time, manner, and how he met the alleged victims.

(6) As the accused gave the statement, he did not exhibit any signs of discomfort and was not fidgeting, but seemed alive as to the serious nature of the proceedings.

(7) D/Ass Insp Chinoni only sought details or clarifications arising from the accused's own explanation, for example, if the accused knew the deceased or complainant before, or the description of the knife allegedly used, and its owner.

(8) After the statement had been typed/recorded, the accused was given the statement to read it himself. I noted that the accused took his time reading the statement to himself, as shown by the movement of his lips. He held the statement with both hands. The concentration exerted in reading the statement by the accused was evident as he moved from one page to the other.

(9) After confirming the correctness of the statement, the accused was asked to sign, and he inquired why he should sign, after which D/Ass Insp Chinoni explained the purpose of signing, and, thereafter, he signed.

(10) The video ends with the accused proceeding to make indications, which are not subject of this hearing. However, I observed that the accused, at the alleged scenes of crime, walked without any difficulty.

A proper analysis of the accused's evidence shows that the accused was not consistent in his outline of version of events.

The alleged assault twenty times under the feet, the threats made with a firearm, and the alleged rehearsal of events were all not part of the accused's Defence Outline.

Further, all these issues the accused later said in his evidence were not put to D/Ass Insp Chinoni or D/Sgt Moyo in cross-examination.

It is difficult, in the circumstances, to accept that this statement was foistered on the accused.

As the accused explained, the gestures he made were his own. The accused admitted that the questions he asked were also his own meant to safeguard his rights.

The alleged gaps in the video referred to by counsel for the accused are difficult to appreciate in light of the explanation by D/Ass Insp Chinoni and that the accused's alleged indications are not before the court.

After a careful analysis of the evidence, I find nothing to suggest that the accused was swayed by any external impulses or that any form of pressure was improperly brought to bear upon him to cause him to give the warned and cautioned statement. There is nothing to negative his freedom of volition.

This explains why, even before the Magistrate who declined to confirm the statement, the accused only alleged “intimidation” not the physical violence he now outlined, in an inconsistent manner, before this court.

If the accused had been assaulted, as he alleges, he would have said so to the Magistrate.

I am not persuaded by the accused's evidence, that, the very magistrate who declined to confirm his statement would fail to properly record the alleged impropriety the accused alleged to him or her let alone to fail to note the injuries the accused exhibited to the magistrate.

It is incredible to suggest that the magistrate ignored all that as accused now alleged.

I am satisfied that the State has discharged the evidential onus thrust upon it as regards the admissibility of the accused's unconfirmed warned and cautioned statement. It has been proved, beyond reasonable doubt, that, the accused made the statement freely and voluntarily without being improperly influenced thereto.

After making this finding, I have no discretion to exclude the accused's warned and cautioned statement.

In the result, it is my finding, that, the accused's unconfirmed warned and cautioned statement is admissible.

Accordingly, the accused's warned and cautioned statement is admitted, as Exhibit 5, which includes both the written statement and the accompanying video recording of that statement.

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The two appellants were charged with allegations of obstructing or endangering the free movement of persons or traffic in contravention of section 38(C) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by placing and burning tyres and grass along the Harare-Mutare Road in Rusape.

They were convicted after a full trial and sentenced to 3 years imprisonment each of which 1 year imprisonment was suspended for 5 years on the usual conditions of good behaviour.

The appellants noted an appeal against both conviction and sentence on the following grounds:

“AS AGAINST CONVICTION

1. The Learned Magistrate erred in convicting appellants despite the fact that the State failed to prove its case beyond reasonable doubt due to the following:

(a)(i) The appellants clearly stated in their Defence Outline, that, they were not part of the crowd and were going to Ridgemont Park Suburb for some family assignment and that fact was not refuted by the State.

(ii) That, the reason they ran away was because they feared for their lives in view of the events of August 2018. Again, this assertion was not refuted.

(iii) That, they never participated in the blocking of the road as alleged or at all.

(b) The Learned Magistrate misdirected himself in failing to analyse the credibility of the three State witnesses in view of the following:

(i) That, the self-recorded statements, together with statements, were similar word for word save for personal information therefore connivance was apparent.

(ii) That, they all departed from their statements materially.

(iii) That, they never gave any details implicating appellant in their statements and that the attempt to do so, while giving evidence, clearly indicated that something happened between the receiving of statements and the time of testifying in court.

(iv) That, despite the clear challenge that they never arrested appellants and that they were not present when the appellants were arrested by soldiers, they all failed to identify, let alone, record statements of the alleged six soldiers, or at least mention their brigade. It is therefore clear that the witnesses were not present at the time appellants were arrested and assaulted, therefore could not have possibly witnessed the alleged participation by appellants.

(v) The Learned Magistrate misdirected himself on points of law and fact by failing to recognise the contradictions by the three State witnesses on the reasons why they did not self record the alleged participation of appellants which Sergeant Ngangu saying they were busy and Constable Chingonze saying they felt it was not necessary. Further, the Learned Magistrate failed to consider the improbable testimony of Sergeant Ngangu that it took them up to ten minutes to drive for a distance of 50 metres.

AS AGAINST SENTENCE

The sentence imposed by the Learned Magistrate is so severe as to induce a sense of shock in view of the following:

(i) That, appellants are young first offenders.

(ii) That, no one was injured as a result of the alleged action.

(iii) That, there are other available sentence of a fine or community service which the Learned Magistrate misdirected himself by failing to consider.”

The State alleged, in the State Outline, that, on 15 January 2019, at around 1030 hours, the appellants and outstanding four accomplices connived and proceeded to the 174km peg along the Harare-Mutare road where they placed some burning tyres on the road.

They were seen committing the offence by the Rusape reaction team which comprises of the members of the Zimbabwe Republic Police and the Zimbabwe National Army.

On noticing the reaction team approaching, the appellants ran away into different directions.

The reaction team chased after the appellants and managed to arrest them.

A partly burnt tyre was recovered by the police at the scene.

Although the grounds of appeal against conviction are clustered and heavily laden, the outstanding issues for appeal are:

(i) Whether the State failed to prove its case against the appellants.

(ii) Whether the court a quo failed to analyse the credibility of State witnesses.

Finally, on the issue of sentence, whether the sentence imposed by the court a quo was so severe as to induce a sense of shock.

As against conviction, the appellants submitted, that, there is no onus on them to prove their innocence.

They pointed out in their defence, that, they were not part of the crowd and they were on their way to Ridgemont Park for some family assignment. They ran away because they feared for their lives in view of the events of August 2018. The failure by the Trial Magistrate to accept this, to the appellants, was a misdirection. The State failed to prove its case beyond reasonable doubt.

The appellants went on to add to their submissions, that, the court a quo failed to analyse the credibility of the State witnesses.

According to the appellants, the witnesses for the State departed from their statements materially.

The appellants attacked the uniform format of the police's witnesses recorded statements and alleged connivance. The appellants further submitted, that, the witnesses testimony lacked credibility since the police were not present at the time the appellants were apprehended by members of the armed forces, the soldiers. The witnesses failed to accurately identify the appellants from a distance; maybe, the actual perpetrators fled from the scene unnoticed, argues the appellants.

On the other hand, the State submitted the following on the aspect of conviction:

The court a quo did not err nor misdirect itself in assessing the evidence adduced before it for it to come up with the verdict of guilty against the appellants.

The State went on to submit, further, that, the trial court correctly analysed the evidence and found the witnesses to be credible hence the verdict of the trial court was reasonable and justified by the evidence. The trial court accepted and relied on the evidence of the three police details who testified.

The appellants notable substantive point, observable from the appeal, is centralised on the evidence of the police details.

According to the record of proceedings, police received information about the conduct of the appellants and their partners. They reacted by coming to the scene, but, in the company of the members of the army.

Upon arrival at the scene, those responsible for barricading the road fled.

Constable Tichaona Merica pursued and managed to apprehend Leonard Rebanewako, the second appellant, whom he positively identified through the dreadlocks. Luke Ngangu chased after the first appellant and arrested him.

Both officers testified seeing each of the appellants actively involved in activities that perpetuated something to do with the barricading of the road.

The first appellant was placing a tyre on the road, the second appellant was holding some dry grass which he threw in the burning tyre; he was also seen placing a log on burning tyres.

Tichaona Merica was seated in front of the reaction team vehicle when he saw the events happening.

When the second appellant was arrested he admitted (see p19 of the record of proceedings).

Sergeant Ngangu was also seated in the front when he saw the first appellant throwing a tyre on the fire which was burning.

Constable Yvonne Chingonzo told the trial court a quo, that, the first appellant, upon arrest, admitted to barricading the road and asked for forgiveness for what he had done.

This evidence, found on pp36 and 59, is actually corroborated by the second appellant, and, the effect is that Constable Chingonzo is placed at the scene of the arrest contrary to the averments by the appellants, that, they were arrested by the soldiers and handed over to the police at a later stage.

As a general observation of the record of proceedings, most of his evidence was barely challenged by the defence.

The defence spent most of its time pointing out the similarities of the witness's written statements, and ignored the evidence which directly placed the appellants at the scene of the barricading.

The following issues are not in dispute:

(a) The Harare–Mutare Road was barricaded at Rusape on 15 January 2019 at the 174km peg. Tyres and logs were placed on the road and some of the tyres were burning.

(b) The police and the army reaction team arrived at the scene and the perpetrators fled.

(c) The two appellants were at the scene of the barricade and they were chased after and arrested.

The pertinent question is: whether the two appellants were part of the perpetrators?

The version of the appellants, deduced from the defence, is that they were merely passers-by at the crime scene. They were arrested while running away.

On p53 of the record of proceedings, the first appellant stated, that, whilst they were using the Mutare Road, they passed where people were violent. After passing, they heard people shouting “soldiers” and they started running.

The second appellant, relating the same event on p58, stated that, when they were in Mutare Highway and had passed the mob, they started running away since they had passed the scene; they were trying to separate themselves from the scene.

One can see the difficulties the two appellants find themselves in trying to explain their presence at the scene and why they were arrested.

However, as the State counsel properly put it in the heads of argument, the appellants were at or near the scene of the crime; they ran away when the police and the army arrived. They were caught in the process of running away.

The army and the police caught them by surprise, and, the probabilities, deduced from the circumstances of this case, is that the appellants were arrested because they were the last to be on the scene participating in the barricading....,.

The soldiers were part of the reaction team constituting both army and police, and, the latter, has the right to arrest offenders and the police details did their constitutional mandate to arrest the appellants.

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HH42-12 : WILLARD CHAWIRA vs THE STATE
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CCC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

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HB55-16 : FELODY MUNSAKA vs THE STATE
Ruled By: MATHONSI J

HH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

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Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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SSC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE
Ruled By: CHIDYAUSIKUCJ

HHH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt. MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

HHH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

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Ruled By: PATEL J

HH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

HB37-10 : THE STATE vs MTHUKUTHELI SIBANDA
Ruled By: CHEDA J and MATHONSI J

CCC04-14 : JENNIFER WILLIAMS and MAGODONGA MAHLANGU and CLARA MANJENGWA and CELINA MADUKANI vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL OF POLICE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA, MAKARAU JA GOWORA JA and OMERJEE AJA

CCC08-16 : OBEDIAH MAKONI vs COMMISSIONER OF PRISONS and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and CHITAKUNYE AJCC

HMA57-18 : THE STATE vs BEN CHITALU
Ruled By: MAWADZE J and MAFUSIRE J

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB127-17 : THE STATE vs GLADYS MUTOPA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HMA01-16 : THE STATE vs KINGDOM HLAHLA
Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and GWERU

HHH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

CCC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CCC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

CCC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

HMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

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Indictment or Charge re: Constitutional Rights iro Arrest, Detention or Incarceration and Prosecution ito Approach

HH42-12 : WILLARD CHAWIRA vs THE STATE Ruled By: UCHENA J and MWAYERA J

HH63-10 : THE STATE vs YOMENCE CHAITEZVI and NOTICE KIDA and OBERT MUCHEMWA and ZVIDZAYI MARUFU and JACOB KAGOGODA Ruled By: PATEL J and ASSESSORS: CHIDYAUSIKU and TUTANI

HH149-09 : THE STATE vs K A JUVENILE Ruled By: UCHENA J and ASSESSORS: NYANDORO and MUTAMBIRA

HH15-10 : THE STATE vs ROY BENNNET Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

HH26-13 : THE STATE vs TAPIWA PARWADA Ruled By: MATHONSI J

View Appeal HH29-11 : STATE vs BIGKNOWS WAIROSI Ruled By: UCHENA J and ASSESSORS: BARWE and GONZO

HB20-11 : STATE vs THULANI NCUBE Ruled By: MATHONSI J and NDOU J

CCC03-13 : DOUGLAS MUZANENHAMO vs OFFICER IN CHARGE CID LAW AND ORDER and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

CCC07-15 : DANIS KONSON vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

HMA03-16 : THE STATE vs JEALOUS NEMARINGA and PATRICK MARUFU Ruled By: MAFUSIRE J

HB55-16 : FELODY MUNSAKA vs THE STATE Ruled By: MATHONSI J

HH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O. Ruled By: MAFUSIRE J

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SSC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE Ruled By: CHIDYAUSIKUCJ

HHH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt. MAKEDENGE and DETECTIVE CONSTABLE MUUYA Ruled By: HUNGWE J

HHH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL Ruled By: UCHENA J

HHH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE Ruled By: PATEL J

HH196-18 : IGNATIUS CHOMBO vs THE STATE Ruled By: MUSHORE J

HB37-10 : THE STATE vs MTHUKUTHELI SIBANDA Ruled By: CHEDA J and MATHONSI J

CCC04-14 : JENNIFER WILLIAMS and MAGODONGA MAHLANGU and CLARA MANJENGWA and CELINA MADUKANI vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL OF POLICE and ATTORNEY GENERAL OF ZIMBABWE Ruled By: ZIYAMBI JA, GARWE JA, MAKARAU JA GOWORA JA and OMERJEE AJA

CCC08-16 : OBEDIAH MAKONI vs COMMISSIONER OF PRISONS and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS Ruled By: CHIDYAUSIKU CJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and CHITAKUNYE AJCC

HMA57-18 : THE STATE vs BEN CHITALU Ruled By: MAWADZE J and MAFUSIRE J

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB127-17 : THE STATE vs GLADYS MUTOPA Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HMA01-16 : THE STATE vs KINGDOM HLAHLA Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and GWERU

HHH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT Ruled By: UCHENA J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH220-16 : THE STATE vs GEORGE LOVELL Ruled By: MUSAKWA J

CCC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CCC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

CCC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ

HMA56-19 : THE STATE vs WONDERFUL MANJORO Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE Ruled By: MWAYERA J and MUZENDA J

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Law Portal
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HH42-12 : WILLARD CHAWIRA vs THE STATE
Ruled By: UCHENA J and MWAYERA J

HH63-10 : THE STATE vs YOMENCE CHAITEZVI and NOTICE KIDA and OBERT MUCHEMWA and ZVIDZAYI MARUFU and JACOB KAGOGODA
Ruled By: PATEL J and ASSESSORS: CHIDYAUSIKU and TUTANI

HH149-09 : THE STATE vs K A JUVENILE
Ruled By: UCHENA J and ASSESSORS: NYANDORO and MUTAMBIRA

HH15-10 : THE STATE vs ROY BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

HH26-13 : THE STATE vs TAPIWA PARWADA
Ruled By: MATHONSI J

View Appeal HH29-11 : STATE vs BIGKNOWS WAIROSI
Ruled By: UCHENA J and ASSESSORS: BARWE and GONZO

HB20-11 : STATE vs THULANI NCUBE
Ruled By: MATHONSI J and NDOU J

CCC03-13 : DOUGLAS MUZANENHAMO vs OFFICER IN CHARGE CID LAW AND ORDER and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

CCC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

HMA03-16 : THE STATE vs JEALOUS NEMARINGA and PATRICK MARUFU
Ruled By: MAFUSIRE J

HB55-16 : FELODY MUNSAKA vs THE STATE
Ruled By: MATHONSI J

HH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SSC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE
Ruled By: CHIDYAUSIKUCJ

HHH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt. MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

HHH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

HHH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

HH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

HB37-10 : THE STATE vs MTHUKUTHELI SIBANDA
Ruled By: CHEDA J and MATHONSI J

CCC04-14 : JENNIFER WILLIAMS and MAGODONGA MAHLANGU and CLARA MANJENGWA and CELINA MADUKANI vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL OF POLICE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA, MAKARAU JA GOWORA JA and OMERJEE AJA

CCC08-16 : OBEDIAH MAKONI vs COMMISSIONER OF PRISONS and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and CHITAKUNYE AJCC

HMA57-18 : THE STATE vs BEN CHITALU
Ruled By: MAWADZE J and MAFUSIRE J

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB127-17 : THE STATE vs GLADYS MUTOPA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HMA01-16 : THE STATE vs KINGDOM HLAHLA
Ruled By: MAWADZE J and ASSESSORS: MUTOMBA and GWERU

HHH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

CCC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CCC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

CCC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CCC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

HMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE
Ruled By: MWAYERA J and MUZENDA J