The appellant was charged with, and convicted of, the crime of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He allegedly committed the offence when he was 13 years of age. He was 19 years old when the trial commenced.

The court a quo sentenced the appellant to 4 years imprisonment. It suspended 2 of the 4 year prison term for 5 years on condition of good future conduct on the part of the appellant. He, in that regard, was sentenced to an effective 2 years imprisonment.

He successfully applied for bail pending his appeal against both conviction and sentence. He is, therefore, on bail pending this appeal.

The State's allegations against the appellant were that, on 27 October 2006, and behind Rimuka Stadium which is in Kadoma, the appellant did have forceable carnal knowledge of one Alice Amon who was 10 years of age at the time of the alleged offence. The State cited Alice Amon as the complainant.

The applicant also seeks an order declaring certain conduct of the State unconstitutional….,.

The applicant, however, urged the Court to grant the applicant the relief sought in paragraphs 2 and 3 of the draft order, which read:

“Whereupon after reading the documents filed of record and hearing counsel for the parties, it is declared that –

2. That (sic) the practice by which accused persons who freely attend at court from their homes are arrested at court for purposes of appearing in court from custody is illegal and unconstitutional;

3. Consequently, that the applicant's arrest and detention on 3 December 2013 was illegal and unconstitutional.”

Counsel for the applicant contended that there was need for the Court to make a ruling on these issues to control or put an end to the practice of arresting accused persons at court and lodging them in the cells pending their appearance in court. This practice, it is common cause, is common at the Magistrates' Courts.

The applicant averred that on the fateful day he attended at court from his home, having been advised by the police officer in charge of the matter that it would be heard on that day. He attended freely and voluntarily, but was surprised, upon arrival at court, to be told by the police officer, a Mr Mutonhodzi, that he was to be taken into the holding cells and would appear in court as a person in custody.

He entered the holding cells at Rotten Row Magistrates' Court under protest. He was taken over by the prison officer and appeared in court from the said cells. In the cells, he mixed with accused persons of all types from the remand prison and other police stations. The court released him on free bail and remanded him out of custody. The court remanded him on free bail at about 0900 hours. Despite his being remanded on free bail, he was again led down to the holding cells and held there for the rest of the day until he was released at about 1600 hours.

The applicant's case is that he should never have been deprived of his liberty for the seven hours in the circumstances of this case. Put differently, he lost his liberty for seven hours as a result of the actions by the police or the State. The actions of the police were arbitrary and without legal basis.

The issue that falls for determination is whether or not the deprivation of the applicant's liberty in the circumstances of this case constitutes an unlawful arrest and/or detention, which violated his right to liberty as guaranteed by section 49(1)(b) of the Constitution. It is alleged that the deprivation of liberty experienced by the applicant is routinely meted out to accused persons in similar circumstances at the Magistrates Courts throughout the country.

The Law

The law relating to the right to liberty has been commented on in a number of cases. In the case of Allan v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (H) REYNOLDS J had this to say:

“Since time immemorial, the liberty of the individual has been regarded as one of the fundamental rights of man in a free society. Long before the Magna Carta codified the principle, almost eight hundred years ago, man has pursued and jealously guarded his right to freedom of person. In the words of Thomas Jefferson: 'The God who gave us life gave us liberty at the same time.' Revolutions have been staged and wars have been fought in the name of freedom. This includes Zimbabwe's own long and bitter struggle. The protection of this right is enshrined in the Constitution of Zimbabwe, and the courts will certainly play their part in preserving this right against all infringements, and all attempts to erode or violate the principle involved.”

The arrest of an accused person that involves placing the accused in custody invariably involves the deprivation of that person's right to liberty. For that deprivation of liberty to be constitutional, it must be lawful. If the arrest is unlawful, then it must also be unconstitutional.

It is common cause that the applicant was arrested at court.

Section 49(1)(b) of the Constitution protects the right to liberty against arbitrary or unlawful arrest. For an arrest to be lawful, it has to be predicated on a just cause. In Muzondo v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S) it was stated that the legality of an arrest has to be predicated on the proper exercise of the discretion to arrest. Section 25 of the Criminal Procedure and Evidence Act [Chapter 9:07] authorises arrest, but such an arrest has to be based on a proper exercise of the discretion to arrest.

The factors to be considered in deciding whether the discretion to arrest was properly exercised are set out in Muzondo v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S)…, as follows:

“In making the determination of whether the decision to arrest the plaintiff is open to challenge, several important factors require to be considered. They are –

(i) The possibility of escape;

(ii) The prevention of further crime; and

(iii) The obstruction of police enquiries.”

It is common cause that the applicant attended at the police station prior to the court date and during the period that investigations were conducted. He was sent home and not placed in custody. He was advised of the court date and he freely attended at court - where his liberty was curtailed by placement into the holding cells.

The question of whether he could escape obviously does not arise once it is accepted that the applicant freely attended court on the day in question. The prevention of the commission of further crimes or the obstruction of police enquiries cannot have influenced the arresting police officers on the facts of this case.

These are factors that must have already been weighed by the police during investigations and did not lead to placement into custody. It is quite clear that in this case none of the factors set as necessary for a lawful arrest set out in Muzondo v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S) existed before the applicant was arrested and placed into custody at the court.

Counsel for the second and third respondents did not make any meaningful submissions pertaining to the impugned practice. The second respondent did not appear before the Court but submitted heads of argument. He argued that there was no infringement of the applicant's personal liberty which entitles him to the relief that he is seeking.

It appears the second respondent does not dispute what transpired on the day in question, as alleged by the applicant. Basically his argument is that this procedure is lawful because it is the standard procedure.

It is trite law that the police can only deprive a person of liberty in accordance with the law. A detention is a deprivation of a person's liberty, which is only permissible in terms of the law. It is common cause that the applicant was detained. Once that is established, it is for the respondents to establish the legal basis for the detention.

In this case, the applicant was not verbally arrested. He was simply told that he was going to be in police custody up until being granted bail by the court and even after being granted 'free bail' he remained in custody up until the end of the day. No legal basis was advanced by the State justifying the detention of the applicant in the circumstances of this case.

It follows, therefore, that the detention was unlawful and a violation of the applicant's constitutional right to liberty.

It is also not disputed that what happened to the applicant is common practice at criminal courts.

The Court is satisfied that this practice is unconstitutional, in that it interferes with an accused person's right to liberty without any regard to the legal requirements set out in Muzondo v Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S). I must, however, add the caveat that each case has to be determined on its own facts.

It is only in those cases where the facts are on all fours with this case that this provides a precedent.

It is for these reasons that the Court, after reading documents filed of record and hearing counsel, issued the following order:

“IT IS DECLARED THAT (sic)

1….,.

2. That the applicant's arrest and detention, on 3 December 2013, at court, for the purpose of his appearing in court from custody when he had freely attended at court was unlawful and unconstitutional in terms of section 49(1)(b) of the Constitution of Zimbabwe.

IT IS ORDERED THAT:

3. The prosecution of the accused in this case is permanently stayed.

These matters were referred to this court by a Magistrate's Court in terms of section 24(2) of the former Constitution of Zimbabwe (“the former Constitution”). The applicants allege a breach of sections 15(1) and 18 of the former Constitution.

The relief sought is a permanent stay of criminal proceedings.

The facts of the matter are as follows.

PETROS MAKAZA & GOLDEN NYIKA

The applicants were charged with contravening section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Act”), namely, robbery and theft. It is alleged that on 10 August 2012, at Munyuki Shopping Centre in Epworth, the applicants unlawfully, intentionally and violently took from William Mukurumidze (hereinafter referred to as 'the complainant') his beret and his cell phone. The applicants deny the charges. They contend that the complainant, a soldier attached to the Presidential Guard, together with three of his colleagues, assaulted the applicants on the night the alleged offences were committed for wearing 'MDC' T-shirts. After assaulting the applicants, the complainant took them to the police and accused them of the robbery and theft.

Thereafter, the arresting officer, together with the complainant and seven other individuals, handcuffed the applicants and proceeded to assault them with clenched fists and booted feet for allegedly stealing the complainant's beret and cellphone and sought to extract a confession from the applicants. After these assaults, the applicants were made to wear MDC T-shirts and taken to Mbare where they were surrendered to members of Chipangano, a vigilante brigade, who further assaulted and tortured them severely.

In short, the applicants' case is that they were tortured by both the police and members of the vigilante brigade who did so at the instance, and with the connivance, of the police.

It is these assaults by the police and the vigilante brigade that the applicants allege constitute torture and violated their constitutional rights. They contend that because of this torture their prosecution should be permanently stayed. In this connection they caused the following questions to be referred to this court for determination, namely:-

(i) Whether a constitutionally legitimate prosecution can be conducted where the State violates a fundamental right;

(ii) Whether the violation of rights in this matter warrants a permanent stay of prosecution;

(iii) The remedy available to the applicants under the ubi jus ibi remedium principle.

The respondent did not challenge the allegations of the applicants. Consequently, the Court proceeds on the basis that they were admitted. It is also not disputed that while the torture was intended to extract from the applicants a confession to the commission of the crime, it did not succeed in securing such a confession.

Article 1 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment defines torture as follows:

“…, 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 party 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.”

I have no doubt in my mind that the assault on the applicants constitutes torture and is a violation of Article 1 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment and also a violation of section 15(1) of the former Constitution.

The respondent's case is that the ill-treatment of the applicants, in breach of section 15(1) of the former Constitution, in this particular case, does not taint the decision by the public prosecutor to institute criminal proceedings against them. The respondent further argues that the requirement for remand, as enshrined in section 13(2)(e) of the former Constitution, had been complied with, despite the fact that the assault by the police and the vigilante brigade was to gather evidence to sustain the prosecution.

The respondent admits that the assault was perpetrated so as to gather further evidence to sustain the prosecution. However, it is accepted that no evidence was gathered as a consequence of the torture as the applicants, despite the torture, denied committing the offence in question.

KHUMBUZO GUMBO and SYDNEY NDACHENGEDZWA

They were both employed by EASYLINK (PVT) LTD, BULAWAYO, the latter as a teller and the former, a security guard. They were charged with contravening section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], “THEFT.”  It was alleged that on 29 April 2012, the two applicants, together with two other tellers not yet arrested, having intimate knowledge that a large sum of money had been deposited in their employer's bank vault on 28 April 2012, had connived to steal, and had thereafter stolen, the said cash, amounting to US$107,774= from their employer.

It was alleged that the four employees, ('the accomplices') had taken advantage of the fact that they were the only ones on duty that day and had access to the keys to the vault. They had, at closure of business at about 4.20pm on 29 April, deliberately left the security door unlocked and the alarm system unarmed in preparation for their return later that night to effect the theft. It was further alleged that in order to feign a break-in, the accomplices had cut the burglar bars of the toilet window, which they left open, and destroyed the mother board of the CPU digital video recorder (the CCTV) with a view to destroying the video evidence but unknowingly left the hard drive which contained all the footage linking the accomplices to the commission of the offence.

The State alleges that after their arrest, the applicants had indicated their desire to make indications as to the place where they had hidden the money. They led the police, who were accompanied by three (3) details from Dog Section, to a bushy place beyond the Hillside area where their handcuffs were removed.  They were allowed to alight from the vehicle for the purpose of making indications when suddenly they ran off in opposite directions and the dogs were released after them. The dogs caught up with them and were eventually called off by their handlers but not before severe injuries had been inflicted on the applicants.

The charge is denied by the applicants.

They allege that upon their arrest on 30 April 2012, they were taken to the offices of the CID where they were interrogated. Khumbuzo Gumbo was assaulted with batons on the legs and under the feet. It is common cause that when he appeared in the Magistrates' Court injuries were visible on both his knees and feet and his leg was swollen. Thereafter, on the following day, they were taken by homicide police for indications and further interrogation. As they passed Hillside Police Station, they were joined by a van from the Dog Section. They arrived at a certain spot and were made to alight from the vehicle. They were interrogated and in the process dogs were set on them, as a result of which each applicant sustained severe injuries from dog bites and had to be hospitalised.

The factual disputes which arise from the two conflicting accounts as to how the injuries were sustained by the applicants cannot be resolved by this court.

The applicants allege that they were tortured in order to obtain evidence to be used at the trial. Both the torture and the motive therefor are denied. The respondents, while accepting that the applicants were bitten by the dogs, deny that the applicants were tortured. In any event, the respondents deny that any evidence was obtained as a result of the assault, or, that it was intended to use any such evidence in the prosecution of the applicants.

DISPOSITION

The questions referred for determination have, to a large extent, been answered by this Court in Mukoko v The Attorney-General 2012 (1) ZLR 321 (S). They are:

(i) Whether any trial can be based on evidence extracted through a violation of the right enshrined in section 15(1) of the former Constitution;

(ii) Whether or not the use at the trial of information obtained as a result of torture will violate the right of the applicants to a fair hearing enshrined in section 18(2) of the former Constitution;

(iii) Whether the applicants' right to protection against torture was violated.

In Mukoko v The Attorney-General 2012 (1) ZLR 321 (S), this Court had this to say…, on the effect of evidence extracted through torture on a prosecution:

“The decision of the Court on this point is that ill-treatment per se has no effect on the validity of the decisions (decision) 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 (decision) depending on compliance or non-compliance by the public prosecutor with the requirements of permissible deprivation of personal liberty under s 13(2)(e) of the Constitution.”

The prosecutors, in the present matters, are not relying on the ill-gotten fruits of the ill-treatment of the applicants to institute the prosecution.

On the authority of Mukoko v The Attorney-General 2012 (1) ZLR 321 (S), the fact that the applicants (in the Petros Makaza and Golden Nyika case) were tortured in violation of section 15(1) of the former Constitution, cannot form the basis of a permanent stay of prosecution where such torture does not yield the evidence the State seeks to rely on. Furthermore, the requirements of remand, as envisaged in section 13(2)(e) of the former Constitution, had been complied with - despite the torture by the police.

The same must apply to the Khumbuzo Gumbo and Sydney Ndachengedzwa cases.

In view of the disputes of fact concerning the purpose and intent of the assault perpetrated on the applicants, it has not been established that the treatment meted out to the applicants constitutes torture as defined above. However, that notwithstanding, the applicants argue that the ill-treatment by the police was such as to warrant a stay of prosecution.

The instant cases are distinguishable from Mukoko v The Attorney-General 2012 (1) ZLR 321 (S). 

In Mukoko v The Attorney-General 2012 (1) ZLR 321 (S), Mukoko was tortured before she was charged.  The State sought to rely on the confession obtained as a result of the torture to sustain the charges.

In the Petros Makaza and Golden Nyika case, the applicants did not confess despite the torture. On their own evidence, they, as it were, resisted the torture. The prosecution is based on the evidence of the complainant and other witnesses.

Similarly, in the Khumbuzo Gumbo and Sydney Ndachengedzwa case, no evidence was obtained from the alleged assault or ill-treatment.

In both matters, there is no direct connection or nexus between the fruits of the alleged torture or inhuman or degrading treatment to which they were subjected and the institution of the criminal proceedings. In these circumstances, an order of the permanent stay of the criminal proceedings is not the appropriate remedy.

This conclusion is regrettable in the extreme.

It is, however, an inevitable consequence of the proper interpretation of the law. This Court abhors the torture of an accused person. Torture is wholly unacceptable to this Court but it cannot be a bar to prosecution where the prosecution is based on evidence not extracted by such torture. The appropriate remedy for the applicants lies in a claim for damages and not a stay of prosecution.

In this regard, the applicants also submitted that the ubi jus ibi remedium principle entails that for every right violated there should be a corresponding remedy.

I, however, do not accept, on the facts of the instant cases, that the stay of prosecution is the appropriate remedy. The torture is not in any way linked to the prosecutions at hand in the Magistrates Court. The applicants have not shown that there was any evidence procured as a result of their torture which the respondent intends to use for the purpose of their prosecution. The applicants' remedy, as I have already stated, may lie in a civil claim for damages or in a prosecution of the perpetrators of the assault or torture.

A prosecution predicated on a confession extracted through torture is unlawful and unconstitutional….,.

We were urged by counsel for all the applicants to grant a permanent stay of prosecution on the basis that this court cannot countenance the illegality of the pre-trial torture and assaults inflicted by the police or their agents on the applicants.

The question was raised in Mukoko v The Attorney-General 2012 (1) ZLR 321 (S)…, and determined thus…,:

“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 wrongdoing 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.”

That is not to say that in an appropriate case the Court may not feel constrained to order a permanent stay of proceedings where there has been pre-trial violation of the fundamental rights of an accused person. But this remedy will only be granted in extremely rare circumstances (see Mutsinze v Attorney General CC13-15…,) and each case must be decided on its own merits.

For the reasons outlined above, the applications for permanent stay of prosecution cannot succeed.

In the result, the applications are dismissed with no order as to costs.

GARWE JCC:

I have gone through the judgment of the late former Chief Justice and agree with the general proposition he makes that ill-treatment of an accused person per se has no effect on the validity of the decision by the authorities to prosecute such person on a criminal allegation. Indeed, this view was expatiated in the case of Mukoko v The Attorney-General 2012 (1) ZLR 321 (S), cited in the main judgment.

The view is further expressed by the late Chief Justice that where there is no direct correlation between the fruits of the alleged torture or inhuman or degrading treatment to which an accused person is subjected and the institution of the criminal proceedings, an order of permanent stay of the criminal proceedings is not the appropriate remedy. It is further opined that the appropriate remedy may lie in a claim for damages and not a stay of prosecution. Implicit in this remark is the suggestion that however serious or reprehensible the violation might be, as long as there is reasonable suspicion upon which an arrest is effected, the court is powerless to intervene and order a permanent stay of the criminal proceedings.

I consider the above remarks too wide, and, further, that they do not correctly reflect the law in terms of the current constitutional dispensation. In terms of section 53 of the Constitution, no person may be subjected to torture, or cruel, inhuman or degrading treatment or punishment. In terms of section 176 of the Constitution, the Constitutional Court, Supreme Court and High Court have inherent power to protect and regulate their own process and to develop the common law. In terms of section 85 of the Constitution, the Constitutional Court can grant appropriate relief including a declaration of rights and an award of compensation.

In my view, in a case where the violation of an accused person's rights is serious, this court may well determine that, depending on other considerations, such as the seriousness of the offence the accused is facing, a permanent stay is warranted. It is correct that the grant of a permanent stay is exercised in the most exceptional of circumstances. The corollary to this is that where such exceptional circumstances exist, the court may well feel inclined to grant a permanent stay.

In Jonathan Mutsinze v The Attorney General, Zimbabwe CC13-15, I cited with approval remarks…, of the judgment of the International Criminal Court in ICC 01/04-01/06-772 Appeals Decision, The Prosecutor v Thomas Lubanga Dy-70, that the power to stay proceedings permanently may be exercised:-

“Where either the foundation of the prosecution or the bringing of the accused to justice is tainted with illegal action or gross violation of the rights of the individual making it unacceptable for justice to embark on its course.”

I further quoted with approval remarks in Police v Sherlock 2009 SASC, 64, a decision of the Supreme Court of South Australia, that: -

“The justification for staying a prosecution is that the court is obliged to take that extreme step in order to protect its own processes from being used for purposes alien to the administration of justice…,.”

In my view, therefore, this court can, in an appropriate case, order a permanent stay of prosecution even where there is enough evidence on which a prosecution can be sustained. What constitutes an appropriate case is an issue I prefer to leave for another day.

Indeed, the late former Chief Justice, notwithstanding the clear position adopted earlier in his judgment, appears to accept, towards the end of the judgment, the principle that such a remedy may well be available to an accused person. In this regard, he states:-

“This is not to say that, in an appropriate case, the court may feel constrained to order a permanent stay of proceedings where there has been pre-trial violation of the fundamental rights of an accused person.  But this remedy will only be granted in extremely rare circumstances….,.”

With the above remarks, which contradict the earlier part of the judgment, I would certainly agree.

Where an accused person is subjected, at the pre-trial stage, to the most serious violations of his fundamental rights and he approaches this court for relief, this court must surely have the jurisdiction to grant the ultimate order of a permanent stay of criminal proceedings….,.

In the result, I would qualify the main judgment by adding the rider that torture or degrading or cruel punishment inflicted on an accused person may well justify a permanent stay of criminal proceedings, but this will be in very exceptional circumstances where the court feels that on the facts, it cannot preside over a matter involving a serious violation of an accused person's rights. 

The critical issue is whether the applicant's arrest was lawful.

To answer this question, it must be established what it is that constitutes a lawful arrest. An arrest is a juristic act exercised by an authorised functionary. The starting point is that in terms of section 49(1)(b) of the Constitution every person has the right to personal liberty, including the right not to be deprived of liberty arbitrarily or without just cause.

Since time immemorial, the liberty of the individual has been regarded as one of the fundamental rights of man in a free society. An arrest which does not meet the requirement of a lawful arrest is an odious interference with personal liberty. The general position is that every deprivation of liberty is prima facie unlawful and must be justified in terms of an objective norm. See Ingram v Minister of Justice 1962 (3) SA 225 (W)…,; S v Purcel-Gilpin 1971 (1) RLR 241 (AD); Ngcobo v Minister of Police 1978 (4) SA 930 (D); Minister of Home Affairs and Anor v Bangajena 2000 (1) ZLR 306 (SC). The requirements of a lawful arrest are elements of the protection of the right to personal liberty that have been defined in specific terms by statutory provisions.

Section 49(1)(b) of the Constitution is in broad terms which do not specify the requirements of what constitutes a lawful deprivation of liberty. In the case of arrest, section 49(1)(b) is given effect to by section 25 of the Criminal Procedure & Evidence Act [Chapter 9:07. The section provides:

“25 Arrest without warrant by peace officer or other officer

(1) Any peace officer and any other officer empowered by law to execute criminal warrants is hereby authorised, subject to the general or specific directions of a superior officer or person placed in authority over him, to arrest without warrant -

(a) Any person who commits any offence in his presence;

(b) Any person whom he or she has reasonable grounds to suspect of having committed any of the offences mentioned in the First Schedule or the Ninth Schedule:…,.”

Section 2 of the Criminal Procedure & Evidence Act [Chapter 9:07] defines 'peace officer' to include “any police officer.” The Ninth Schedule of the Criminal Procedure & Evidence Act [Chapter 9:07] contains all the offences listed under the Schedule to the Act relating to section 13 of that Act.

Section 50 of the Constitution, which the applicant alleges was violated by the first and second respondents, also deals with what constitutes a lawful arrest. It also gives an arrested person the right to challenge the lawfulness of the arrest before a court. The best way of reading the section is to start by reading section 50(8), which provides that any arrest that contravenes the requirements of the section is illegal. The relevant subsections of section 50 provide that:

“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;…,.

(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.

(8) An arrest or detention which contravenes this section, or in which the conditions set out in this section are not met, is illegal….,.”

Section 50(1)(a) of the Constitution is given effect to by section 41A(1) of the Criminal Procedure & Evidence Act [Chapter 9:07], which provides:

“41A Arrested person to be informed of his or her rights

(1) Subject to this section, where a person has been arrested by a peace officer, whether with or without a warrant, the peace officer shall cause the person to be informed promptly, in a language he or she understands, of -

(a) The reason for the arrest;…,.”

Section 50(1)(e) of the Constitution is given effect to by the provisions of section 41A(6) (b) and (c) of the Criminal Procedure & Evidence Act [Chapter 9:07], which provide:

“(6) Every person concerned in the arrest of another person under this Act or any other enactment, and whether the arrest is with or without warrant, shall ensure that the arrested person is -

1. Treated humanely and with respect for his or her inherent dignity; and

2. Permitted to challenge the lawfulness of the arrest in person before a court; and

(c) Released promptly if the arrest is unlawful.”

What is beyond doubt is that what constitutes a lawful arrest is set out in statutory provisions that give effect to the broad terms of the provisions of the Constitution guaranteeing the right to personal liberty. Personal liberty is not interfered with by means of an arrest only. The statutory provisions deal with situations of deprivation of personal liberty by means of arrest for offences. The Constitution is not directly applicable in the determination of the question of what constitutes a lawful arrest. What are applicable are the statutory provisions. The Constitution is only applicable indirectly through the statutory provisions that give effect to its provisions.

It is apparent from the relevant statutory provisions that a lawful arrest is in large part predicated on the existence of a reasonable suspicion of the commission of an offence. The point is made in Dumbell v Roberts [1944] 1 All ER 326, where SCOTT LJ commented…,:

“The power possessed by constables to arrest without warrant…, provided always that they have reasonable grounds for their suspicion is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall, before arresting, satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt.”

In Williams and Another v Msipha NO and Ors 2010 (2) ZLR 552 (S)…, it is stated:

“Respect for the fundamental right to the protection of the law is a guarantee for judicial protection of the fundamental right to personal liberty. Section 13(2)(e) of the Constitution authorises deprivation of an accused person of personal liberty where there is reasonable suspicion of him having committed a criminal offence. That is the only ground on which a judicial officer faced with a request by a public prosecutor for the remand of an accused person is authorised by law to deprive the accused person of his or her liberty by an order of remand, in or out of custody, for the purpose of ensuring his or her appearance at the trial on the charge.”

The law is therefore that a person arresting another has to have a reasonable suspicion that an offence has been committed or is being committed by the person he or she arrests. There is no dispute over the standard of a lawful arrest and its location in statutory provisions.

The validity of the statutory provisions on what constitutes a lawful arrest is not challenged.

The main challenge to the lawfulness of the arrest of the applicant is based on the contention that the first respondent did not form a reasonable suspicion of him having committed any of the offences set out in the warned and cautioned statement.

Counsel for the applicant pressed the contention in the applicant's heads of argument that even if the first respondent had formulated a suspicion, it was not a reasonable one, as it would have been based on the content of the exchanges between the applicant and Mr Finde during the interview conducted by the latter.

The difficulty is that it is not for the Constitutional Court to decide whether or not the first respondent formed a reasonable suspicion of the applicant having committed the offences set out in the warned and cautioned statement. Before a court with the power to hear and determine the matter, the first respondent would have to say, in evidence, whether or not he formed the suspicion. It is he who could say on what basis he formed the suspicion. He would have been subject to cross-examination. It is only after finding that the first respondent formed the suspicion required by the law that the court hearing the evidence could decide whether the suspicion formed was proved to be reasonable.

Whether the person who arrested another had a reasonable suspicion of the arrestee having committed an offence is a question of fact. That question relates to the arresting person's state of mind at the time of arrest. It is about the arresting person's interpretation of facts. The interpretation and conclusion reached, subjectively, give rise to the question whether there were grounds the knowledge of which would have caused a reasonable person in the position of the arrester to form the suspicion of the arrestee having committed the offence for which he or she was arrested. 

In R v van Heerden 1958 (3) SA 150 (T) it was said…,:

“The test for determining the existence of a reasonable suspicion is an objective one, that is, the grounds of suspicion must be those which would induce a reasonable person to have the suspicion.”

In Castorina v Chief Constable of Surrey [1996] LG Rev Rep 241…, WOOLF LJ commented that whether or not an arrest was lawful depended upon the answers to three connected questions. Those questions were:

“1. Did the arresting officer suspect that the person who was arrested was guilty of the offence?

The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

2. Assuming the officer had the necessary suspicion, was there reasonable cause for suspicion?

This is a purely objective requirement to be determined by the Judge, if necessary, on the facts found by a jury.

3. If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has it been exercised in accordance with the principles laid down by LORD GREENE MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.”

In the same judgment, SIR FREDERICK LAWTON…, said:

"Suspicion, by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which the court would adjudge to be reasonable. The facts may be within the arresting constable's own knowledge or have been reported to him. When there is an issue in a trial as to whether a constable had a reasonable cause, his claim to have had knowledge or to have received reports on which he relied may be challenged. It is within this context that there may be evidential issue as what he believed to be the facts. But it would be for the court to adjudge what were the facts which made him suspect that the person he arrested was guilty of the offence which he was investigating."

In Attorney-General v Blumears and Anor 1991 (1) ZLR 118 (S)…, GUBBAY CJ said:

“The standard for the deprivation of personal liberty under s 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 seeks, on the one hand, to safeguard the individual from rash and unreasonable interference with liberty and privacy, and from unfounded charges of crime; yet, on the other, to give fair leeway for enforcing the law in the community's protection. The criterion of reasonable suspicion is a practical, non-technical concept which affords the best compromise for reconciling these often opposing interests. Requiring more would unduly hamper the legitimate enforcement of the law. To allow less would be to leave law-abiding persons at the mercy of the whim or caprice of the authorities.”

In the case of Muzonda v Minister of Home Affairs and Another 1993 (1) ZLR 92 (S)…, GUBBAY CJ held thus:

“It is not sufficient for a peace officer to personally believe that he has reasonable grounds on which to base the arrest. These grounds must, in addition, be justifiable from an objective point of view, that is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds.”

The applicant was arrested and the intention was to bring him before a magistrate for initial remand. It is at these proceedings that the applicant ought to have challenged the lawfulness of his arrest. The question of the lawfulness of the applicant's arrest would have been within the jurisdiction of that court. The Magistrates Court would have had the competence to conduct the factual inquiry into whether or not the first respondent formed a reasonable suspicion of the applicant having committed the offences set out in the warned and cautioned statement.

It is clear that the question the applicant sought to place before the Constitutional Court for determination is whether what the first respondent did, under the services of the Zimbabwe Anti-Corruption Commission, in arresting him, was in compliance with the requirements of a lawful arrest. The issue involves a finding of facts; and the interpretation and application of the statutory provisions on the requirements of a lawful arrest. The determination of the issues does not need proof of violation of the fundamental right to personal liberty. It requires proof of the facts in dispute. It also requires proof of compliance with the statutory requirements of a lawful arrest. The determination of the issues does not involve the interpretation, protection or enforcement of the Constitution.

None of the issues is a constitutional matter.

The Indemnity of Release bound the applicant, in terms of the law, to report at the offices of the Zimbabwe Anti-Corruption Commission on 4 November 2016 for the purposes of appearing before a magistrate for remand. Had he appeared in accordance with the Indemnity of Release, the applicant would have been in a position to challenge the lawfulness of his arrest before the magistrate. That court would have heard evidence and made findings of fact in the adjudication of the challenge to the lawfulness of his arrest.

The applicant can still challenge the lawfulness of his arrest in that court.

The question whether the Zimbabwe Anti-Corruption Commission has powers of arrest is closely related to the question whether the first respondent had power to arrest the applicant in the services of the Zimbabwe Anti-Corruption Commission.

These are questions which the magistrate can deal with in considering whether the arrest was lawful or not. 

The determination of the question whether the Zimbabwe Anti-Corruption Commission has powers of arrest involves an answer to the question whether the Zimbabwe Anti-Corruption Commission, in the exercise of its functions, could have the first respondent, a police officer, arrest any person if it reasonably suspects the person of having committed an offence falling within its jurisdiction, provided the police officer also reasonably suspects the person of having committed the offence. This is a matter that the magistrate hearing the question of whether the first respondent reasonably suspected the applicant of having committed the offences falling within the Zimbabwe Anti-Corruption Commission's jurisdiction could competently determine.

The inquiry into the question whether the Zimbabwe Anti-Corruption Commission has arresting powers would be an academic exercise without first determining whether the first respondent, as a police officer on secondment, had arresting powers he could exercise in the services of the Zimbabwe Anti-Corruption Commission.

Even before making that finding, the most important inquiry would be whether or not the first respondent had a reasonable suspicion of the applicant having committed the offences set out in the warned and cautioned statement….,.

Section 3 of the Police (Transfer and Secondment) Regulations, S.I.819A of 1980 provides for the secondment of police officers to employment outside of the Regular Force.

Section 24 of the Police Act [Chapter 11:10] provides:

“24 Powers and authority to cease on vacation of office

When any member, for any reason, ceases to hold or exercise his office, the powers, functions and authority vested in him as a member shall cease immediately.”

The import of section 24 of the Police Act [Chapter 11:10] is that the only instance in which a member of the Police Force ceases to have the powers, functions and authority vested in him as a member is vacation of office. The services as a member are terminated upon vacation of office. A police officer does not cease to hold or exercise his office by reason of secondment. From a reading of section 3 of the Police (Transfer and Secondment) Regulations, S.I.819A of 1980, secondment is when a member of the Regular Force is transferred to employment outside the Regular Force in the service of the State upon such terms and conditions as may be fixed by the Commissioner-General. Such an officer continues to have the powers vested in a member of the Police Force - including the power of arrest….,.

Whatever view the applicant takes of the relationship between the Zimbabwe Anti-Corruption Commission and the first respondent, the question of what section 13 of the  Anti-Corruption Commission Act [Chapter 9:22], as read with section 1 of the Schedule to the Anti-Corruption Commission Act [Chapter 9:22], means, would need to be determined. The Magistrates Court would have to answer the question whether the statutory provision means that the Zimbabwe Anti-Corruption Commission can have a person arrested whom it reasonably suspects of having committed an offence falling within its jurisdiction by a police officer who forms his or her own reasonable suspicion of the person having committed the offence.

This application was referred to this Court by the court a quo in terms of s 24(2) of the old Constitution of Zimbabwe (hereinafter referred to as “the Constitution”). The facts forming the background to this application are the following –

The applicant was charged, in the Magistrates Court, with two counts of fraud as defined in section 136(B) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In Count One, it is alleged that on 19 February 2008, and at No.30 East Road, Avondale, Harare, the applicant unlawfully, and with intent to defraud, misrepresented to the complainant in Count One that he was selling a property, Stand Number 521 St Patrick's Close, Helensvale Township, Harare (“the Stand”), when he well knew that he was not selling the said property but only intended to induce the complainant in Count One to act upon the misrepresentation and pay him some money. As a result of this misrepresentation, the complainant in Count One paid the applicant the sum of US$62,000= (sixty-two thousand United States dollars), thereby causing the complainant in Count One to suffer prejudice in the amount of US$62,000= (sixty-two thousand United States dollars).

In Count Two, it is alleged that on 11 October 2008, and at No. 30 East Road, Avondale, Harare, the applicant unlawfully, and with intent to defraud, misrepresented to the complainant in Count Two that he was selling a property, Stand Number 521 St Patrick's Close, Helensvale Township, Harare, yet in truth and in fact he was not selling the said property. The applicant made the misrepresentation when he well knew that he was not selling the said property but only intended to induce the complainant in Count Two to act upon the misrepresentation. The complainant in Count Two paid the applicant the sum of US$48,500= (forty-eight thousand five hundred United States dollars), thereby causing the complainant in Count Two to suffer prejudice in the amount of US$48,500= (forty-eight thousand five hundred United States dollars).  

In short, the applicant sold the same Stand to two different people from whom he received the above amounts.

The applicant was arrested by the police in connection with the above allegations. He was made to sign a warned and cautioned statement on 15 February 2009 after being formally advised that criminal proceedings were being preferred against him. On 17 February 2009, he was placed on remand on these allegations.

On 5 November 2009, after attending court on no less than ten occasions, further remand was refused.

It would appear from the record that some time in November 2010 a decision was arrived at by a law officer in the then Attorney-General's Office to decline prosecution on the ground that the allegations against the applicant do not constitute a criminal offence. He opined that the allegations against the applicant constituted a civil wrong for which the complainant could sue the applicant. 

Quite clearly, this conclusion by the law officer is erroneous. 

The alleged conduct of the applicant, if proved, constitutes both a criminal offfence and a civil wrong.

In May 2011, the Attorney-General rescinded his earlier decision to decline prosecution and directed that the applicant be re-summoned to attend court. It would appear that the Attorney-General rescinded the earlier erroneous decision after representations from the complainant in Count One.

On 10 August 2011, the applicant was placed on remand and thereafter remanded on a number of occasions.

On 20 February 2012, the applicant made an application for referral of this matter to this Court for determination in terms of section 24(2) of the Constitution. The trial magistrate granted the application and the matter was referred to this Court.

Two issues fall for determination in this application –

1. Whether the applicant's right to a fair hearing within a reasonable time, as enshrined in section 18 of the Constitution, was violated; and

2. Whether the applicant's right to protection of the law, as enshrined in section 18 of the Constitution was violated by the State, in that the Attorney-General rescinded his decision not to prosecute the applicant after receiving representations from the complainant in Count One.

Counsel for the applicant made detailed submissions in support of these two grounds.

I will deal with the second ground first….,.

I now turn to the first ground of challenge, namely, the alleged inordinate delay in bringing this matter to trial.

This Court has dealt with applications for stay of prosecution on the grounds of inordinate delay in trying the accused on numerous occasions and the law is now well settled. In the leading case of In re Mlambo 1991 (2) ZLR 339 (SC), this Court set out the procedure to be followed and the factors that a court takes into account in deciding whether the applicant's right to a fair trial within a reasonable time has been violated or not. The following are the factors to be taken into account in making a determination –

1. The explanation and responsibility for the delay;

2. The assertion of his right by the accused person;

3. The prejudice arising from the delay; and

4. The conduct of the prosecution and of the accused person in regard to the trial.

The case of In Re Mlambo 1991 (2) ZLR 339 (SC) has been followed in numerous cases. In the case of S v Banga 1995 (2) ZLR 297 (S)…, the Court had this to say:

“The principles which govern applications of this nature are now well settled. They were set out in In re Mlambo (supra) and have since been applied on many occasions; more recently in Hungwe & Ors v A-G SC50-94; S v Matarutse SC101-94; and S v Marisa SC126-95.

In this application, the period of slightly over four years was presumptively long enough to trigger an enquiry into the factors that go into the balance in the determination of whether the delay in bringing the applicant to trial was reasonable in the pertaining circumstances.  These factors are –

(i) The explanation and responsibility for the delay;

(ii) The assertion by the applicant of his fundamental right to a hearing of the case within a reasonable time;

(iii) The existence of any prejudice suffered by the applicant resulting from the delay.”

To enable this Court to properly determine the factors set out in In Re Mlambo 1991 (2) ZLR 339 (SC), certain peremptory requirements have to be met by the applicant making such an application. In S v Banga 1995 (2) ZLR 297 (S)…, the Court pronounced itself as follows:

“Regrettably, the manner in which the legal practitioner requested the referral was totally misconceived.   It was wholly insufficient to make a statement from the bar, and then to point solely to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether at any time before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay.

Such a fundamental omission on the part of the defence is fatal to the success of the application.

This Court has stressed frequently that if an accused is of the view that the State is dragging its feet in bringing him to trial, he must assert his constitutional right to be tried within a reasonable time and in default of compliance with such protest seek a stay of proceedings. See S v Ruzario 1990 (1) ZLR 359 at 367F-G; In re Mlambo supra at 354B-C; S v Musivitisi & Anor SC229-93 at p 6; S v Matarutse supra at p 3.”

The Court went further to state the following at pages 301F-302A:

“I trust that I have made it clear that it is essential for an accused, who requests a referral to this Court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed.  Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits. Cogent reasons will have to be provided as to why the further evidence was not presented to the lower court. 

The well known requirements laid down in Farmers' Co-op Ltd v Borden Synd (Pvt) Ltd 1961 R & N 28 (FS), 1961 (1) SA 441 (FS) and as discussed latterly in Leopard Rock Hotel Co (Pvt) Ltd v Walenn Const (Pvt) Ltd 1994 (1) ZLR 255 (S) and Bevan Trading (Pvt) Ltd v Voest-Alpine Intertrading GbmH SC149-94, will have to be met.”

In casu, the legal practitioner for the applicant did not fully appreciate what was required of him. He only made submissions from the Bar and simply pointed to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility or that of the prosecutor. He was required to place before the Magistrate's Court evidence as to whether at any time before 28 February 2012 the applicant had asserted his right to a fair trial within a reasonable time and, even more importantly, whether or not actual prejudice had been suffered as a result of the delay.  

See S v Nkomo and Anor SC89-03.

The failure by the applicant's legal practitioner to place evidence before the Magistrate's Court, which evidence would have assisted this Court in assessing the relevant facts in this case, was fatal.

After considering the papers filed of record and hearing counsel, this Court issued the following order:

“It is ordered that:

1. The application for the trial of the applicant in case number CRB 8/2000 to be permanently stayed be and is hereby dismissed.

2. The matter is remitted to the trial judge at the High Court, Harare, for the reconstruction of the missing record, to include the reasons for conviction, proceedings and findings on the question of extenuation and thereafter for him to pass sentence.

3. The reasons for this order will follow in due course.

4. There be no order as to costs.”

What follows are the reasons for the above order.

Owing to the long and tortuous journey that this matter has trudged, it is necessary to set out the background in some detail, as such background explains, to a large extent, why this Court issued the above order.

FACTUAL BACKGROUND

In August 1998, the applicant and two other co-accused were arrested on allegations of murder and armed robbery committed at Chiwaridzo Bottle Store located at Chipadze Township, Bindura. They were placed on remand. Their application for bail was dismissed. The applicant has been in custody since then.

The criminal trial commenced sometime in September 2001 before JUSTICE HUNGWE and two Assessors. The applicant, who was legally represented by pro deo counsel, initially Mr Julian Colegrave, and, thereafter, Mr Makuyana, pleaded not guilty to two counts of murder. He, however, admitted taking part in the robbery in the company of two others, one of whom was armed. Evidence was led by both the State and defence. The defence case was closed on a date not known but either in 2003 or 2004.

In July 2013, the applicant filed the present application seeking a permanent stay of the criminal proceedings instituted against him, and, as a corollary, an order releasing him forthwith from custody. He alleged that the failure by the State to complete his trial, ten years after the closure of the State case and fifteen years after his arrest, constituted a violation of his rights enshrined in section 50 and section 69 of the current Constitution.

PROCEEDINGS BEFORE THIS COURT

In his founding affidavit, the applicant averred that the record of the proceedings had gone missing together with the transcript of the proceedings. Attempts to reconstruct the record by the Registrar were unsuccessful. Owing to the lengthy delay in the finalisation of his trial, the fact that the record of the proceedings had gone missing and the prejudice that he stands to suffer were a trial de novo to take place, he prayed for an order permanently staying the criminal proceedings against him.

On 22 January 2014, this Court sat to hear submissions on the application. The State advised the Court that it had not been possible to obtain an affidavit from the Registrar of the High Court explaining the status of the record of proceedings. By consent of both parties, the matter was postponed sine die and an order made for the Registrar of the High Court to file an affidavit, within thirty days, to clarify the status of the record and, if lost, the effort made to reconstruct the record. The Court also ordered the trial judge to furnish, through affidavit, the reasons for the delay in the finalisation of the matter.

In response thereto, the Acting Registrar of the High Court of Zimbabwe advised, by affidavit, that the record, as transcribed, and the judge's note books, had gone missing. The cassette tapes used to record the proceedings had been erased after the transcription and re-used in other cases. Whilst a number of documents had been availed to assist in the reconstruction, the record on the evidence led was not available.

In his response, the trial judge, also by affidavit, stated that after the closure of the defence case and the hearing of closing arguments, he convicted the applicant on two counts of murder and one of robbery.  One of the three accuseds had passed on before judgment. He acquitted the remaining accused. After hearing submissions on the question of extenuation, he made a finding that were no such circumstances as both counts of murder had been committed in cold blood and in the course of a planned robbery. On the record of the proceedings which has gone missing, he expressed the view, without substantiation, that the circumstances suggested collusion between the applicant and officers at the High Court to ensure that the matter was not concluded.

The applicant, exasperated by what he considered were unfounded allegations made by the trial judge against him, in a supplementary affidavit, denied that he had ever been convicted and that the proceedings had been postponed so that sentence could be pronounced. He stated that nothing further had happened after the closure of the defence case. He denied the suggestion that he may have had anything to do with the disappearance of the record of the proceedings, citing lack of capacity on his part, owing to the fact that he has always been in custody.

The matter was again set down before this Court on 12 March 2014. It became clear from the submissions made during that hearing that there was a dispute as to how far the matter had gone and whether it was still possible for the record of the proceedings to be reconstructed. The State however advised the Court that, at a meeting attended by both sides in the trial judge's chambers, the latter had indicated that he was able to reconstruct the record of proceedings using notes provided by the prosecution. Following this revelation, this Court again postponed the matter and issued another order directing the Registrar of the High Court to attend to the reconstruction of the record, within thirty (30) days, with the assistance of both the State and Defence counsel, the Assessors and other officials who had a role to play in the criminal proceedings.

Following upon the above order of this Court, a number of affidavits were filed:

14.1 Faith Rutendo Matuku, a legal process transcriber who transcribed tape numbers 11 to 22 (tape numbers 1-10 having been transcribed by Miss Mufakose – now late) stated in her affidavit that, as far as she recalls, the proceedings went as far as judgment and extenuating circumstances.

14.2 Florence Ziyambi, the trial prosecutor, stated that in 2003 the applicant and another accused were convicted of murder with actual intent after which submissions were made on the question of extenuation. The matter was then postponed for a ruling on the question of extenuation and passing of sentence. During the proceedings she took notes of all the proceedings. The notes were contained in three note books, which she marked I, II and III. Following the disappearance of the record, and, in order to assist with the reconstruction of the record, she availed the notebooks to the Acting Registrar of the High Court, a Mr Makomo. When she later requested for the notebooks, she received only the first two. The third, which contained notes on the judgment and submissions on extenuation, could not be located. She arranged for a transcription of the first two notebooks. A copy of that transcript has been filed with this Court.

14.3 Tatenda Mawere, who was a partner in the law firm representing the applicant, stated that, at the close of the State case, the applicant's counsel, Mr Makuyana, handed over the file to him as he was leaving the country to work at their Botswana office. He too had to shuffle between Zimbabwe and Botswana as he, like Mr Makuyana, was trying to make ends meet during the economic meltdown that gripped the country before dollarization. He handed all the files, including the applicant's, to a professional assistant working in the office. He stated that, so far as he can recollect, he was never advised to come to court for the verdict. Following the filing of this application and after diligent search, the file could not be located in their office. He was unable to state categorically whether there had been a conviction.

14.4 Munyaka Wadaira Makuyana, who was the applicant's legal practitioner during the trial, confirmed that the file opened by the law firm in respect of the applicant had disappeared. He also confirmed that he had gone through the transcript prepared using the notes taken by Mrs Florence Ziyambi and that the transcript is a fair representation of what took place during the State case.

14.5 Felix Makudza, the Investigating Officer, confirmed that the transcript prepared using the notes made by Mrs Ziyambi correctly reflects the evidence he gave in Court.

14.6 Zuze Zuze, a State witness who gave evidence during the trial and was present at the time of the commission of the offences, also confirmed that the transcript correctly reflects the evidence he gave during the proceedings.

14.7 Tatenda Mawere, in a supplementary affidavit, confirms that the transcript prepared using the notes taken by Mrs Ziyambi is a correct reflection of what happened during the accused's person's evidence in chief.

The application was then set down for hearing on 14 September 2014. 

At the hearing, both parties were agreed that the record of the proceedings transcribed with the assistance of the notes made by Mrs Ziyambi was accurate. However, the parties were not agreed on whether or not the applicant had indeed been found guilty of murder and robbery and what remedy should follow.

At the hearing, the applicant submitted that a not guilty verdict had been returned. In the alternative, that even if there was such a verdict, a permanent stay would still be warranted as the record of the proceedings remains incomplete and no-one can say with any degree of certainty what transpired after the closure of the defence case.

The State opposed the grant of a permanent stay, pointing out that the trial judge, the trial prosecutor, Assessor and transcriber had all deposed to the fact that a verdict of guilty had been returned.

Whilst accepting that there had been some prejudice owing to the delay in the finalisation of the matter, the State submitted that the interests of justice would be seriously prejudiced were the applicant to be set free, particularly in light of the fact that the trial judge had indicated that he was in a position to reconstruct the remaining portion of the proceedings. The State further submitted that the totality of the facts suggested that someone had gone to great lengths to ensure that the record was destroyed and that the only person who stood to benefit from the disappearance of the record is the applicant. To release him in these circumstances would set a dangerous precedent as it would encourage persons undergoing trial to arrange for the disappearance of the record of proceedings in the belief that they would ultimately get a permanent stay of the proceedings. In the circumstances, the State submitted that the Court should order the trial judge to reconstruct the missing part of the record and thereafter proceed to pass sentence.

This Court then reserved judgment.

WHETHER THE APPLICANT WAS FOUND GUILTY

Having considered all the circumstances of this case, the Court was satisfied that the appellant had, indeed, been convicted and that submissions on the issue of extenuation were made. Under oath, the trial judge stated that he convicted the applicant of murder with actual intent and that, following submissions by both parties, he found no extenuating circumstances. In affidavits filed pursuant to an order of this Court, the legal process transcriber confirmed that the matter proceeded to the extenuation stage and that no extenuating circumstances were found. The trial prosecutor, Mrs Ziyambi, also by affidavit, confirmed that there was a conviction for murder although it appears she could not recall whether the issue of extenuation was determined. Moreover, one of the Assessors, Mrs Shava, also confirmed that indeed the applicant was found guilty of murder.

Having taken into account all these documents, we were satisfied that the trial had indeed proceeded to the stage where the trial court made a finding that there were no extenuating circumstances. For some reason, which remains unclear, the actual sentence of death (which requires certain formalities) had not been passed.

WHETHER THE REMAINING PORTION OF THE RECORD CAN BE RECONSTRUCTED

All the parties were agreed that the transcript of the proceedings that was prepared using Mrs Ziyambi's trial notes is correct. The transcript captures what happened during the trial proceedings up until the close of the defence case.

In submissions before this Court, the State indicated that, at a conference held in the presence of both parties, the trial judge had indicated that he was in a position to reconstruct the remaining portion of the record of the proceedings.

This Court therefore accepted, as a fact, that notwithstanding the various difficulties that had been encountered in trying to reconstruct the record, such reconstruction was possible. Moreover, the circumstances surrounding the commission of the offences were not seriously in dispute. In the trial before the High Court, the applicant had admitted undertaking a journey from Marondera, in the company of five others, to Bindura, with the sole purpose of committing acts of robbery and theft. He admitted going to Chiwaridzo Bottle Store in the company of one Evans and one Bonga and that he was aware that Evans was armed with a pistol. He admitted that, whilst in the company of Evans, he had participated in the robbery and had told the patrons to lie down on the floor. He accepted that when the deceased, Konje, confronted him saying the weapon they had was a toy and following an assault on him by Konje with a beer bottle, Evans had then fired the shot which killed the deceased. The applicant admitted that after this shot, he jumped over the counter and seized a cash box containing the day's takings.

A re-construction of the remaining portion of the record is therefore possible.

WHETHER THE APPLICATION FOR PERMANENT STAY IS WARRANTED

The factors to be considered in an application of this nature are settled. These are;

(a) The length of the delay;

(b) The reasons given by the State for such delay;

(c) Whether the applicant asserted his rights to a speedy trial; and

(d) The prejudice to the accused caused by the delay.

In order to determine whether the delay is reasonable or not, a Court must endeavour to strike a balance between these factors. In general, no one factor can, on its own, justify an inference that the delay is unreasonable. The balancing test involves balancing the conduct of both the State and the accused on a scale –S v Banga 1995 (2) ZLR 297 (S); In re Mlambo 1991 (2) ZLR 399 (SC)…,.

I proceed to consider each of the factors in turn.

THE LENGTH OF THE DELAY

At the time of the hearing of this application, the applicant had been in custody for approximately fifteen and a half years. He had been a convicted prisoner for about ten years. The delay was certainly inordinate and both parties to this application are agreed that the delay was, as far as we are aware, unprecedented and certainly presumptively prejudicial.

THE EXPLANATION FOR THE DELAY

The reason for the delay has already been touched upon. The original transcript of the proceedings went missing in mysterious circumstances and the tapes used in the transcription were erased – also in unclear circumstances. The trial judge's own handwritten record suffered a similar fate. The applicant's legal practitioner's file containing the notes made during the proceedings also disappeared without trace.  When the Attorney–General's Office availed three notebooks to the Acting Registrar, in 2013, to assist in the reconstruction of the record, the third notebook – containing the notes on the judgment and submissions and findings on extenuation, also went missing. It was only after three orders of this Court that a transcript of the proceedings up to the stage of the close of the defence case was made available by the Registrar of the High Court and confirmed as correct by both the witnesses who gave evidence during the trial and the applicant's erstwhile legal practitioners. Whilst it is by no means clear on the record before us as to when the transcript of the proceedings and the trial judge's notes went missing, it is however apparent that the disappearance of the record largely contributed to the delay.

WHETHER THE APPLICANT ASSERTED HIS RIGHTS

There is evidence that the applicant complained to at least three High Court judges about the delay after the year 2008. The first complaint was made to a judge during a prison visit. The other two were made during bail applications in the High Court. All were of the opinion that, since this was a matter where all the evidence had been heard by HUNGWE J, the issue of the delay was better dealt with by the trial judge. The referral of the complaint by these judges to HUNGWE J did not produce any results.  Thereafter, it was discovered that the transcript of the record of the proceedings, as well as the judge's notes, had both mysteriously gone missing.

The applicant had been represented by pro deo counsel during the trial proceedings. It is common cause that his counsel thereafter left the country to work in Botswana but left the file at the offices of the law firm. The file was then re-allocated to a legal assistant in the law firm. 

What happened to it thereafter is unknown.

Whilst I accept, as a general proposition, that a person who seeks a permanent stay of the criminal proceedings in which he is an accused, must assert his rights and that failure to do so will make it difficult for him to prove that he was denied a speedy trial, I am not convinced in this case that the applicant was in a position to do more than complain to the High Court judges. His lawyer, representing him pro deo, never demanded that this matter be determined. After the legal practitioner left the country, no other legal practitioner from the firm pursued the matter.

It is moot whether the applicant received the best representation possible in the circumstances from his erstwhile legal practitioners….,.

In the above regard, it is important to bear in mind the remarks of KRIEGLER J in Sanderson v Attorney–General, Eastern Cape 1998 (2) SA 38 (CC), 53 E-G that:

“…, one should not resort to the Barker test without recognising that our society and our criminal justice system differ from those in North America. Nor should one for instance adopt the “assertion of right” requirement of Barker without making due allowance for the fact that the vast majority of South Africans accused are unrepresented and have no conception of a right to a speedy trial. To deny them relief under s 25(3)(a) because they did not assert their right would be to strike a pen through the right as far as the most vulnerable members of our society are concerned. It would be equally unrealistic not to recognise that the administration of our whole criminal justice system, including the law enforcement and correctional agencies, are under severe stress at the moment.”

I am therefore of the view that although the applicant did not assert his rights in the sense in which the term is used, one must remain alive to the fact that he was represented by pro deo counsel who eventually left the country for Botswana and no legal practitioner in the law firm considered it his responsibility to ensure that the matter was concluded.

The failure by the applicant to assert his rights in these circumstances is not one that should weigh heavily against him.

WHETHER THE APPLICANT HAS BEEN PREJUDICED BY THE DELAY

The question of prejudice is to be assessed in the light of the interests of the applicant which the speedy trial right was designed to protect. Three such interests have been identified by this Court:

(a) To prevent oppressive pre-trial incarceration;

(b) To minimise anxiety and concern on the part of the accused; and

(c) To limit the possibility that the defence will be impaired.

See Barker v Wingo 407 US 514 (1972)…, cited with approval in Fikilini v Attorney General…, and in In re Mlambo 1991 (2) ZLR 399 (SC)…,.

The two questions of oppressive pre-trial incarceration and the possibility of impairment of the applicant in conducting his defence do not arise in the present matter. This is for obvious reasons. Once the applicant was found guilty and no extenuating circumstances found in 2003 or 2004, the question of oppressive pre-trial incarceration cannot therefore arise. So too is the consideration that the applicant would be impaired in conducting his defence, for there was no further evidence to be led or witnesses to be called.

That the applicant must have suffered considerable anxiety for the duration of his incarceration cannot be doubted.

In his affidavit, the applicant says the church that he had founded has collapsed, whilst two of his four wives have died of aids-related illnesses as they had to engage in sexual immorality to fend for themselves in his absence. His eldest son also committed suicide.

As GUBBAY JA stated in In re Mlambo 1991 (2) ZLR 399 (SC)…,.;

“The right, therefore, recognises that, with the passage of time, subjection to a criminal charge gives rise to restrictions on liberty, inconveniences, social stigma and pressures detrimental to the mental and physical health of the individual.”

A court may quite properly infer or presume prejudice, where such is not proven - In re Mlambo 1991 (2) ZLR 399 (SC)…,.

In the Canadian case of R v Askov [1990], 2 S.C.R 1199, 1232, CORY J remarked that there is a:-

“…, general, and in the case of very long delays an often virtually irrefutable presumption of prejudice to the accused resulting from the passage of time.”

In Mills v The Queen [1986] 1 SCR 863,919…, another Canadian case, the concept of security of the person was said to encompass protection against:

“Overlong subjection to the vexations and vicissitudes of a pending criminal accusation” which include:

'stigmatisation of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors including possible disruption of family, social life and work, legal costs, uncertainty as to outcome and sanction. These forms of prejudice cannot be disregarded nor minimised when assessing the reasonableness of delay.'”

THERE MUST BE GOOD REASON FOR A STAY TO BE GRANTED

A further general principle that must be borne in mind in a case of this nature is that, whilst each case must be decided on its merits, the grant of a permanent stay is an exceptional remedy – Clipsal Australia (Pty) Ltd v Gap Distributors (Pty) Ltd 2009 (3) ALL SA 491 (SCA); 2010 (2) SA 289 (SCA).

In Wells v Queen [2010] VSCA 100, the Supreme Court of Victoria (Australia) accepted that it is only in an exceptional or extreme case that a court would grant a permanent stay on the basis that such proceedings constituted an abuse of process and that the test to be applied is:

“'Whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness', or whether the continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process.”

The power to stay proceedings permanently may be exercised:

“Where either the foundation of the prosecution or the bringing of the accused to justice is tainted with illegal action or gross violation of the rights of the individual making it unacceptable for justice to embark on its course.”

ICC 01/04-01/06-772, (Appeals Decision) para 30-31, The Prosecutor v Thomas Lubanga Dyilo (International Criminal Court), 14 December 2006.

In Attorney General's Reference (No.2 of 2001) [2003] UKHL 68, LORD WOOLF stated:

“…, if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is an appropriate remedy. But, in the absence of prejudice of that sort, there is normally no justification for granting a stay.”

In Police v Sherlock 2009 SASC 64, a decision of the Supreme Court of South Australia, the court cited with approval remarks that:

“The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor…, that the Court processes are being employed for ulterior purposes or in such a way…, as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems, in the circumstances, to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.”

The Court further added that:

“The power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed.”

SOCIETAL INTEREST

There will also always be the interests of society to be taken into account in any “balancing” of the factors that have been cited with approval by this Court since Fikilini v Attorney-General…,.

In In re Mlambo 1991 (2) ZLR 399 (SC), GUBBAY CJ cited with approval the remarks of CORY J in R v Askov [1990], 2 S.C.R 1199, 1232…, that:-

“…,. It can never be forgotten that the victims may be devastated by criminal acts. They have a special interest and good reason to expect that criminal trials take place within a reasonable time. From a wider point of view, it is fair to say that all crime disturbs the community and that serious crime alarms the community. All members of the community are thus entitled to see that the justice system works fairly, effectively and with reasonable dispatch. The very reasonable concern and alarm of the community which naturally arises from acts of crime cannot be assuaged until the trial has taken place. The trial not only resolves the guilt or innocence of the individual, but acts as a reassurance to the community that serious crimes are investigated and that those implicated are brought to trial and dealt with according to the law.”

In R v Askov [1990], 2 S.C.R 1199, 1232…, CORY J discussed the “community or societal interest” in the following terms:-

“Community interest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Second, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest.”

DISPOSITION

Whilst accepting, as one must, that the applicant has been in custody for an unconscionably lengthy period of time, it is clear, from what has been said before, that this was due mainly to the fact that the record of the proceedings mysteriously went missing and subsequent attempts to reconstruct the record were further frustrated after the documents that were to be used in such reconstruction also went missing.  The record was only reconstructed using two of three notebooks supplied by the trial prosecutor.

The delay is clearly not the fault of the State.

It is apparent that some unknown person, possibly with the assistance of persons working in the system, went to great lengths to ensure that the record of the proceedings was irretrievably lost. Whilst it will be unfair to suggest, as did the trial judge, that the applicant had anything to do with such disappearance it is, however, clear that the only person who stands to benefit from a situation where the record is irretrievably lost is the applicant.

The facts of this case illustrate, as observed by GUBBAY CJ in In re Mlambo 1991 (2) ZLR 399 (SC), that the system has shortcomings…,. The disappearance of the record could not have been avoided, and, though occasioned by the activities of some unknown persons but who were obviously intent on making sure the record was permanently lost and that it could not be reconstructed, constituted a systemic delay.  Indeed in In re Mlambo 1991 (2) ZLR 399 (SC)…, GUBBAY CJ cited with approval the remarks by POWEL J in Barker v Wingo 407 US 514 (1972) that:

“…,. Finally, a valid reason, such as a missing witness should serve to justify appropriate delay.”

In Police v Sherlock 2009 SASC 64, the Supreme Court of South Australia accepted that obstacles to a fair trial may be encountered and that it is not always possible to achieve a perfect trial. The Court cited with approval remarks by MASON CJ in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR, 23 that:

“Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes…., revelations in a public inquiry…., absence of competent representation…., or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues…,.”

In considering whether or not a permanent stay is warranted, this Court takes note of the following:

(i) That the applicant was convicted of murder committed with actual intent in the course of an armed robbery and that no extenuating circumstances were found to exist;

(ii) That all that remained was the pronouncement of sentence;

(iii) That the record of the proceedings up to the close of the defence case has, fortuitously, been reconstructed using note books provided by the trial prosecutor;

(iv) That the disappearance of the record largely contributed to the delay;

(v) That the circumstances surrounding the commission of the offence were largely admitted by the applicant during the trial; and, finally

(vi) That the trial judge is in a position to reconstruct the missing part of the record.

Case law authority is agreed that it will be in rare cases where the destruction or disappearance of evidence will justify a permanent stay. The court must endeavour to reconstruct the record on the evidence available, despite any loss of documents or death of witnesses –see R v Edwards (2009) 83 ALJR 717; Hodder v Public Transport Authority [2009] WASC 293; Police v Sherlock 2009 SASC 64; Wells v R [2010] VSCA 100; Wells v R (No. 2) [2010] VSCA 294; Aydin v R [2010] VSCA 190; S v Tandiwe Sibanda HH80-91.

The lengthy delay experienced in the completion of this case, occasioned almost entirely by the suspicious disappearance of the record of the proceedings, cannot justify the grant of a permanent stay of the proceedings, particularly in light of the fact that such record of proceedings can be reconstructed.

In light of the above, this Court was of the view that this was a proper case for the matter to be referred back to the trial court for the reconstruction of the missing part of the record and thereafter for sentence to be passed.

I now turn to deal with the applicant's contention that his constitutional rights have been violated as if this was the court of first instance.

The applicant's main contention is that the State, at the close of its case, had not established any one of the essential elements of the offence of contravening section 3(2)(a), as read with sections 3(3) and 3(5), of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

Placing an accused person on remand, trial or on his defence at the close of the State case, when the allegations and/or the evidence led by the State do not constitute an offence, is a violation of an accused person's right to the protection of the law, guaranteed by section 18(1) of the Constitution. See the cases of Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) and Williams and Anor v Msipha N.O. and Ors 2010 (1) ZLR 552 (S)…,.

Thus, in casu, if the evidence led by the State does not establish prima facie any one of the six essential elements of the offence the applicant is entitled to the relief he seeks - the stay of prosecution.

The following are the essential elements of the offence the applicant is charged with –

(a) The accused must be a former owner or occupier;

(b) Of gazetted land;

(c) Who has not ceased to occupy, hold or use that land;

(d) After the expiry of the appropriate period referred to, which in the present case is forty-five days after the fixed date, being 4 February 2007; and

(e) Has no lawful authority to occupy or use that land….,.

The applicant also submitted that the State had to disprove the applicant's defence of a mistake of law.

I will deal with each essential element in turn -

Is The Applicant A Former Owner Or Occupier?

The evidence or facts placed before the trial court clearly establish that the applicant carried out farming operations on the farm in question before and after the farm was acquired in terms of section 16B of the Constitution. That evidence is clearly credible and is corroborated by the annexures attached to the applicant's Defence Outline.

The evidence before the court a quo clearly establishes, prima facie, at the very least, that the applicant is a former occupier of the farm.

Is the Farm Gazetted Land?

The evidence that the farm was acquired in terms of section 16B of the Constitution admits of no debate.   The Government Gazette Extraordinary, dated 22 February 2002, attached to the applicant's Defence Outline, clearly shows that the farm is one of those farms acquired by the State in terms of Constitution of Zimbabwe Amendment (No.17) Act, 2005, which came into effect on 28 December 2006.  

Accordingly, the farm is indeed gazetted land and the evidence to that effect is beyond dispute.

The submission that the acquisition is unlawful because it was declared unlawful by the SADC Tribunal flies in the face of this Court's decision in Commercial Farmers' Union and Ors v Minister of Lands and Rural Resettlement and Ors SC31-10. 

It is a mischievous submission not worthy of any further comment.

The Applicant's Failure To Cease To Occupy, Hold Or Use The Land

Again, the evidence of the two State witnesses is that the applicant used the land before its acquisition in terms of section 16B of the Constitution and is occupying and running farming operations on the farm to date. It is quite clear from this evidence that the applicant has not ceased to occupy, hold or use the farm.  

Again, the evidence that the applicant is still in occupation of the farm is overwhelming.

Is The Applicant In Occupation After The Expiry Of The Appropriate Period Referred To, Which In The Present Case Is Forty-Five Days After The Fixed Date, Being 4 February 2007?

As I have stated, the applicant, according to the evidence of the two State witnesses, is still occupying and running farming operations on the farm to date. Forty-five days have since expired. The applicant should have vacated the farm forty-five days after the date of the acquisition of the farm.

It was submitted that the applicant was permitted to complete his harvest and thus authorised to occupy the farm beyond the prescribed forty-five days, and thereafter the law does not prescribe the period to cease occupation beyond the extended period….,.

It was submitted that the applicant was permitted to complete his harvest and thus authorised to occupy the farm beyond the prescribed forty-five days, and thereafter the law does not prescribe the period to cease occupation beyond the extended period.

The submission that a former occupier, who is permitted to stay on gazetted land for a period beyond the forty-five days prescribed by the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] to enable such occupier to complete harvesting, who overstays that permitted period, does not contravene section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is puerile.

It does not merit serious consideration….,.

Did The Applicant, As Former Occupier, Have Lawful Authority To Occupy, Hold Or Use That Land?

The applicant contends that the letters from the late Vice President Msika and from the Ministry of Lands, Land Reform and Resettlement are “lawful authority” entitling him to remain on the gazetted land.  

I am not persuaded by this argument.  

The letters from the late Vice President do not constitute “lawful authority” in terms of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]….,.

The Applicant's Defence Of A Mistake Of Law

The applicant's defence of a mistake of law is frivolous and vexatious. If the applicant was serious about this defence, he would have left the farm when he was charged. The fact that the applicant is still occupying the farm makes nonsense of this defence.

Is The Definition of “Lawful Authority” Contained In the Act Ultra Vires the Constitution?

In my view, the definition of “lawful authority” in section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is intra vires section 16B(6) of the Constitution….,.

I am satisfied that at the close of the State case there was before the court enough evidence to put the applicant on his defence.

It was also the applicant's contention that the learned trial magistrate, in his reasons for judgment, did not deal with all the grounds that the applicant had raised in his application for discharge and that that constituted a violation of his right to a fair trial.

It is common cause that the learned trial magistrate did give reasons for the dismissal of the application for discharge. The reasons for discharge regrettably did not deal with the grounds of the application in any detail. However, the learned trial magistrate's conclusion that the applicant had a case to answer and should be put on his defence cannot be faulted.

Although his failure to give detailed reasons for judgment amounts to a misdirection, the misdirection did not result in a substantial miscarriage of justice.

The court a quo's misdirection in failing to take into account all the factors it was required by law to take into account constitutes an irregularity. The remedy provided by the law for rectifying such an irregularity is by way of review, in this case to the High Court.

The irregularity in casu cannot found an application to the Constitutional Court in terms of section 24(1) of the Constitution.

When an irregularity has been committed by an inferior court, a superior court has to decide whether the irregularity resulted in a substantial miscarriage of justice justifying the setting aside of proceedings on review or appeal.  

If the irregularity does not result in a substantial miscarriage of justice the proceedings stand….,.

In this application, the applicant seeks the following relief:-

1. A declaration that the refusal by the Magistrate to refer the issues raised by the applicant to the Supreme Court is wrong at law and consequently a breach of the applicant's right to the protection of the law enshrined in section 18(1) of the former Constitution of Zimbabwe.

2. A declaration that the decision by the Attorney-General to proceed with the prosecution of the applicant more than five years after the alleged commission of the offence is a violation of the applicant's right to the protection of the law under section 18 of the former Constitution.

3. A declaration that the present application is properly before the Supreme Court.

4. An order that, the prosecution of the applicant being a violation of her right under section 18, such prosecution be and is hereby permanently stayed.

5. An order that the respondents pay the costs of this application.

THE BACKGROUND

The applicant and one Cecil Rhaniel Chengetai Muderede (“Muderede”) were engaged in an intimate relationship until about 2005 when the relationship came to an end. At the centre of the dispute giving rise to the present proceedings are two properties. The first is Number 4 Goodall Avenue, Emerald Hill, Harare registered in the name of Helce Enterprises (Pvt) Ltd, a company incorporated according to the laws of Zimbabwe. It is common cause that, from the time of its incorporation, the applicant's name appeared on the official records of the company as one of the two Directors of the company. The second property is Number 106 Lomagundi Road, Avondale, registered in the name of another company, Drisdane Investments (Pvt) Limited. It is not in dispute that it was Cecil Rhaniel Chengetai Muderede who purchased this property.

In May 2004, Cecil Rhaniel Chengetai Muderede was specified under the Prevention of Corruption Act [Chapter 9:16].

Following this development, the applicant proceeded to the offices of the Registrar of Companies where, using the specification of Cecil Rhaniel Chengetai Muderede, she was able to remove the name of Cecil Rhaniel Chengetai Muderede as a Director of Helce Enterprises (Pvt) Ltd and in his place had the names of her brothers, Kumbirai Matiashe and Kudzai Matiashe, substituted as Directors. On the strength of a Board resolution passed by the new Board, the applicant was able to obtain a duplicate copy of the Deed of Transfer for Number 4 Goodall Avenue, Emerald Hill. The applicant was able, using the same modus operandi, to get another duplicate copy of the title deeds for Number 106 Lomagundi Road, Avondale.

On 7 June 2007, Cecil Rhaniel Chengetai Muderede filed a complaint of fraud against the applicant with the police. The allegation, on both counts, was that the applicant had misrepresented that Cecil Rhaniel Chengetai Muderede had resigned as a Director of Helce Enterprises (Private) Limited and Drisdane Investments (Private) Limited and in his place had appointed her two brothers, Kundai Matiashe and Kumbirai Matiashe. It was alleged that on the basis of the misrepresentation, the applicant managed to get duplicate title deeds for both properties.

On 25 June 2007, the applicant made a statement to the police. She was thereafter placed on remand.  On 26 February 2008, the charges against the applicant were withdrawn by the State. However, on 17 July 2012, the applicant was served with summons to appear in court on 6 August 2012.

On 21 August 2012, the applicant then filed an application in the Magistrates Court seeking a declaration that the decision by the Attorney-General to try her after six years violated her right to the protection of the law enshrined in section 18 of the Constitution and that the matter be referred to the Supreme court in terms of section 24(2) of the former Constitution.

In papers filed before the Magistrates Court, the appellant stated that the delay of six years during which no trial had taken place was wholly attributable to the State. She had always been available to attend court to answer any allegations. Further, she stated that one of her defence witnesses, Doctor Iris Sarupinda, who was present during the time she had a relationship with Cecil Rhaniel Chengetai Muderede, had relocated to Europe and she was not aware of her present whereabouts.

The appellant did not give oral evidence in support of her application.

In the Magistrates Court, it was not in dispute that on 24 July 2009 and 2 November 2010 the applicant filed a complaint with the police against Cecil Rhaniel Chengetai Muderede and his wife Michelle. In the complaint, she alleged that the two had fraudulently used the title deeds for the two properties to secure mortgage loans in favour of Shankuru Estates. She also complained that a Mr Magwere, from the office of the Registrar of Deeds, a Mr Shadreck Beni from Metropolitan Bank and one Mujokoro, a legal practitioner, had colluded with Cecil Rhaniel Chengetai Muderede and his wife in the fraudulent registration of the mortgage bonds over the two properties.

The State opposed the application for referral of the matter to this Court and led evidence from the Investigating Officer, Detective Inspector Charles Chirove.

The Investigating Officer told the court that a number of factors had contributed to the delay in the prosecution of the matter. In 2008 and 2009 the country experienced a severe economic meltdown which affected the ability of the police to carry out its functions. At one stage the police received reports that Cecil Rhaniel Chengetai Muderede was in South Africa. Because Cecil Rhaniel Chengetai Muderede could not be located the charges against the applicant were withdrawn. Thereafter, in 2009 and 2010, the applicant filed reports with the police based on the same facts against Cecil Rhaniel Chengetai Muderede, his wife and other persons resulting in the arrest of Muderede on fraud charges. When both cases were sent to court, Muderede queried why his complaint, which had been filed earlier, was being overtaken by the complaint filed later by the applicant. Muderede even approached the Anti- Corruption Commission alleging that the police were giving the applicant preferential treatment. The applicant also harassed the police and even made complaints to Police General Headquarters against the witness and several of his fellow officers. She was saying she wanted to be consulted before the police made any decision on this matter. He told the court he formed the opinion that the applicant was throwing spanners into the works to ensure that the matter went nowhere. In an effort to make some progress, the State then reached an agreement with the applicant and Muderede that the case in which Muderede was an accused was to be tried first. In the event that Muderede was convicted, then the case in which he was complainant would die a natural death. However, in the event that he was acquitted, then the case in which the applicant was an accused would then commence. As it so happened, Muderede was acquitted in 2012 as a result of which the applicant was then summoned to appear in court. It was his evidence that it was the applicant who was largely to blame for the delay.

The Magistrates Court was of the view that since the applicant had participated in the agreement which had contributed to the delay she cannot now be heard to complain. On that basis, the court found the application to be frivolous and vexatious. The court further found that the application was an attempt to further delay the proceedings. The court therefore dismissed the application. Following that decision, the applicant filed the present application in terms of section 24(1) of the former constitution.

THE ISSUES FOR DETERMINATION

It seems to me that the issues that arise for determination are twofold.  These are;

(i) Firstly, whether the matter has been properly brought before this Court in terms of section 24(1) of the former Constitution. 

(ii) Secondly, if so, whether the applicant is entitled to a permanent stay of proceedings.

WHETHER THE MATTER IS PROPERLY BEFORE THIS COURT

In dismissing the application for the referral of the matter to the Supreme Court, the magistrate commented:

“Accused now wants to renege from her commitment that she would only be prosecuted if only Cyril Muderede was acquitted because the facts forming the basis of the court charges were similar. Cyril Muderede has now been acquitted so the natural interpretation of their agreement should follow.  Accused participated in circumstances which caused the delay so she should not cry foul because if she had no hand in this matter the State could have proceeded to cause the trial of both matters at the same time but in different courts.

Accordingly, I find that the application is just meant to further delay proceedings and it is frivolous and vexatious. Accordingly the application is dismissed.”

It is common cause that, at the time of the making of the application, there had been a delay of over five years in the prosecution of the matter. That this delay was presumptively prejudicial is without doubt. The applicant was entitled to challenge the decision of the State to prosecute her on a charge of fraud in respect of which she had been charged more than five years previously. The delay was such as to trigger an inquiry into the possible violation of the applicant's rights to the protection of the law.

It is clear from his reasons for dismissing the request for referral that the magistrate did not ask himself whether a constitutional issue did arise from the proceedings. He considered that the applicant had contributed to the delay and that she was trying to further delay the day of reckoning. 

On that basis, alone, he found the application to be frivolous and vexatious.

I am satisfied that the magistrate was wrong in determining the application on the basis of who was to blame for the delay. As counsel for the applicant correctly submitted, the magistrate asked himself the wrong question and inevitably came to the wrong conclusion. Indeed, the State conceded that the decision to refuse to refer the application was wrong and that it violated the applicant's right to the protection of the law as provided in section 18(1) of the former Constitution.

In these circumstances, the applicant was entitled to approach this Court directly - Martin v Attorney General & Another 1993 (1) ZLR 153 (S)…,; Mukoko v Commissioner-General of Police & Ors 2009 (1) ZLR 21…,.

This Court must now place itself in the position it would have been in had the magistrate, as he ought to have done, referred to it the question raised before him.

WHETHER THE APPLICANT IS ENTITLED TO A PERMANENT STAY OF PROCEEDINGS

The factors that this Court is enjoined to consider in an application of this nature are now settled. These are;

(a) The length of the delay;

(b) The reason given by the prosecution for the delay;

(c) Whether the accused person asserted his rights; and

(d) The prejudice occassioned to the accused by the delay.

See In re Mlambo 1991 (2) ZLR 339 (S)…,; Fikilini v Attorney-General 1990 (1) ZLR 105, 113 A-H (SC).

I proceed to consider each of these factors in turn.

(a) THE LENGTH OF THE DELAY

The delay in bringing the applicant to trial is reckoned from 25 June 2007 when she was charged.  See Shumba v Attorney-General 1997 (1) ZLR 589, 592 G (S). 

The fact that charges were withdrawn in 2008 is irrelevant. The clock continued ticking. See In re Mlambo 1991 (2) ZLR 339 (S)…, 

The applicant was summoned to appear in court for trial on 6 August 2012. The delay from the time she was cautioned was therefore just over five years. That delay was inordinate and sufficient to trigger an inquiry into the possible breach of the applicant's rights under section 18(2) of the Constitution.

(b) THE REASONS FOR THE DELAY

In her application before the court a quo, the applicant attached an affidavit in which she explained the basis of her request for the matter to be referred to the Supreme Court. She did not give oral evidence. In the affidavit she stated that she had not contributed to the delay in any way and that it was the State that had employed dilatory tactics in the prosecution of the matter.

The State, however, led evidence from the Investigating Officer. His evidence was that the police force, like most other State entities in the country, was affected by the economic difficulties of 2008 - 2009. The result was that the police had no resources to look for Cecil Rhaniel Chengetai Muderede who was in Banket and at one stage was reportedly in South Africa. Instructions had also been issued for further investigations to be carried out after the withdrawal of the charges in 2008. The main cause of the delay, however, was the fact that the applicant filed two complaints, in 2009 and 2010, based on the same facts.  The result was that Muderede, who had been the complainant earlier, also became an accused. The witness explained that the applicant brought a lot of pressure to bear on the police. She made reports against several police officers, including the Investigating Officer, to Police General Headquarters. She wanted her complaint tried first. Cecil Rhaniel Chengetai Muderede, too, complained that the police were giving preferential treatment to the applicant. It was because of this situation that an agreement was then reached between the applicant, the State and Muderede that the matter in which the applicant was complainant be tried first. If Muderede was convicted then his complaint would die a natural death.  However, if he was acquitted, then the case in which the applicant was the accused would be resuscitated. On that basis, Cecil Rhaniel Chengetai Muderede was tried and was acquitted.  Consequently, the applicant was then summoned so that she would undergo trial on the allegations levelled by Muderede.

Although the Investigating Officer was cross-examined at length on this evidence, he remained unshaken and was adamant that the applicant played a significant role in the delay. The applicant did not give evidence, and, consequently, the evidence given by the Investigating Officer remained largely uncontroverted.

The position is now settled that an applicant must adduce evidence and be cross-examined on it - S v Banga 1995 (2) ZLR 297.

Indeed, this Court has emphasized that the absence of viva voce evidence can be fatal – S v Nhando 2001 (2) ZLR 84; Matutu v S SC34-13.

In State v Banga 1995 (2) ZLR 297, GUBBAY CJ stressed the need for an applicant to testify on the extent to which, if at all, the cause of the delay was his responsibility, whether he had asserted his rights and whether any actual prejudice had been suffered as a result.

At page 301, D-G, the learned Chief Justice remarked further:

“Moreover, the absence of viva voce evidence completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused, particularly where, as here, his liberty was not interfered with; and that it has impaired his ability to exonerate himself from the charge due to the death, disappearance or forgetfulness of potential witnesses. See In re Mlambo supra at 352G and 354D-E; S v Demba SC194-94; S v Marisa supra at p 9.

I trust that I have made it clear that it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed.”

On the basis of the evidence adduced before the court a quo, the position may be summarized as follows;

The delay between June 2007, when the applicant was charged, and the year 2009 is attributable to the State. However, that period was explained by the State. When the charge was withdrawn, in 2008, it had not been possible for the police to contact Cecil Rhaniel Chengetai Muderede. There also had been instructions for some aspects of the case to be further investigated. Further, this was the time of hyperinflation and the police had no resources to look for Muderede. This Court can take judicial notice of the fact that indeed 2008 and 2009 were very difficult years and even the operations of this Court were affected owing to the economic situation then prevailing. It was a situation that affected Government and the citizenry at large.

In my view, that explanation cannot be said to be unreasonable.

The delay after 2009 is explained by the fact that the applicant filed criminal complaints against Cecil Rhaniel Chengetai Muderede, Muderede's wife and other persons involved in the registration of the bond on the two properties. The Investigating Officer explained the difficult situation he and other officers found themselves. They had two dockets on essentially the same facts. The complainant in the one case was the accused in the other. He explained the pressure that was brought to bear on the police pfficers by the applicant. The applicant made complaints to Police Headquarters and investigations into her complaints were instituted. The dilemma that faced the prosecuting authorities was which case to prosecute first. The applicant wanted the case in which she was complainant to be tried first whilst Cecil Rhaniel Chengetai Muderede was insisting that his complaint be tried first as it was first in time. It was against that background that an agreement was reached between the State, the applicant and Muderede that the applicant's complaint be tried first and in the event Muderede was convicted, then his complaint would die a natural death, and, if not, the applicant would then stand trial. Indeed, Cecil Rhaniel Chengetai Muderede was tried and acquitted. It was when the State then sought to proceed with the prosecution of the applicant that she then filed the application for stay of criminal proceedings.

In my view, whilst the State, being dominus litis, should have been more assertive, the reality is that the State was faced with a difficult question given the allegations and counter-allegations made by both, as to whom to prosecute first between the two. The delay was occasioned by this confusion and the agreement that Cecil Rhaniel Chengetai Muderede be prosecuted first. The explanation, in my opinion, is acceptable. It is important that one does not take an armchair view of the situation that arose.

In all the circumstances, I am of the view that the State has proferred a reasonable explanation for the delay.

(c) WHETHER APPLICANT ASSERTED HER RIGHTS

It must be accepted that, in March 2008, when a further remand was refused, this was at the instance of the applicant. To that extent, therefore, she asserted her rights. However, in 2009, the applicant also filed a complaint on the same facts. The police investigated both complaints. Two dockets were opened. 

Both the applicant and Cecil Rhaniel Chengetai Muderede were alleging that the police were not impartial.

Clearly, during this time the applicant was aware, or ought to have been, that the State wanted to prosecute her. She is said to have approached Police Headquarters making a number of allegations against certain police officers. She did not, during this period, seek to assert her rights. Instead, she went along and only after Muderede's acquittal and the decision by the State to prosecute her did she then file the application to permanently stay the criminal proceedings against her.

The totality of the circumstances suggests that whilst in 2008 she asserted her rights; from 2009 she did not and was content to go along in the hope that perhaps the criminal allegations would go away.

(d) THE PREJUDICE OCCASSIONED BY THE DELAY

The issue of prejudice should be assessed in the light of the interest of the accused which the speedy trial right was designed to protect. Three such interests have been identified. These are –

(i) To prevent oppressive pre-trial incarceration;

(ii) To minimize anxiety and concern of the accused; and

(iii) To limit the possibility that the accused will be impaired in his defence. 

Fikilini v Attorney-General 1990 (1) ZLR 105, 113 A-H (SC)…,.

In her affidavit, both in the court a quo, and before this Court the applicant says her friend, Dr Iris Sarupinda, who was present at the time the companies were formed, has relocated to Europe and her present whereabouts are unknown.

This case is a good example why viva voce evidence is essential in an application of this nature. 

The applicant does not say what evidence, exactly, Doctor Sarupinda would give in her defence. She does not say whether she suffered any anxiety during this period. Because the applicant did not give evidence, the State was not given the opportunity to cross-examine her on these issues. She does not say when the doctor left the country and what efforts she has made to trace her current whereabouts. In any event, the formation of a company is never without formality. Various documents have to be filed showing the shareholding, directorship, registered office, etc, of a company. It is not suggested that this documentation is no longer available.

The suggestion that the absence of Doctor Sarupinda will prejudice her is a bald one, and, in my view, would not, in the absence of further substantiation, justify a permanent stay of the proceedings against her.

DISPOSITION

In my view, no justification for a permanent stay of the criminal proceedings pending against the applicant has been shown. Put another way, the suggestion that the right to a fair trial within a reasonable time has been contravened is not sustainable on the facts of this case. In the result, therefore, the application must fail.

This is a matter that was referred to this court by a magistrate in terms of section 24(2) of the former Constitution of Zimbabwe, (“the former Constitution”).  

The applicant was arraigned before a magistrate at Harare on a charge of assaulting or resisting a peace officer as defined in section 176 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegation was that on 14 December 2006, at Makomva Shopping Centre, Glen View 2, Harare, the applicant assaulted one Everisto Maponga, a police officer, who was performing his duty, by pushing him away with both hands.

Before this court, the applicant seeks the permanent stay of his prosecution on the ground that his right to a fair trial within a reasonable time, before an impartial court, has been violated and that this was through no fault on his part.

After hearing submissions by both parties, this court issued an order dismissing the application as being without merit, with no order as to costs. It was indicated that the reasons for this order would follow in due course. 

The following are the reasons.

BACKGROUND

The summary of the State case reflects that on 14 December 2006 a team of police detectives, one of whom is the complainant, was on patrol in the Glen View area in Harare. When the team arrived at Makomva Shopping Centre, Everisto Maponga ('the complainant') observed a motor vehicle that was parked with its boot partially open. The complainant and a fellow detective approached the motor vehicle and observed a motor vehicle engine protruding from its boot.

The complainant requested one of the occupants of the vehicle to step out. The occupant, who later turned out to be one Onwell Kadembo, stepped out of the vehicle. The complainant and his colleague produced their police service identity cards and requested the occupant (Onwell Kadembo), who had stepped out, to identify himself. Onwell Kadembo went back to the vehicle and brought back the applicant's particulars. Whilst the complainant was talking to Onwell Kadembo, the applicant, who was seated in the driver's seat of the parked vehicle, got out and charged towards the complainant. He pushed the complainant causing him to stagger backwards. The applicant charged towards the complainant again but was restrained from further attacking him by other detectives who were nearby and who then arrested him.

On 29 December 2006 the applicant was placed on remand.

The application for referral was made before the applicant had pleaded to the charges. The applicant's legal practitioner applied for the matter to be referred to the Supreme Court, then sitting as the Constitutional Court, for a determination as to whether the applicant's right, in terms of section 18(1) and (2) of the former Constitution, to a trial within a reasonable time had not been violated. This was in view of the time that had elapsed before the applicant's trial commenced. The application was to the further effect that if the Constitutional Court found that the applicant's right had been violated, the prayer before it would be for an order that his prosecution be permanently stayed.

APPLICANT'S EVIDENCE DURING THE APPLICATION BEFORE THE MAGISTRATE

The applicant gave evidence in support of the said application. He said that he was a Member of Parliament for Glen View South constituency. He also said that he had appeared in court several times on account of the allegations of assaulting a peace officer and that the matter was repeatedly remanded due to various reasons. On some occasions, the reason given was that the docket was not ready and on others it was that the witnesses were not available.

His evidence was generalised as he did not assign a specific reason for each postponement on the specific dates when he appeared in court.

The applicant also testified that besides nine police officers who witnessed the incident, there was one other person, a civilian, one Onwell Kadembo, whom he would have wished to call as a witness in the event the matter came to trial. However, he could no longer do so as the said Onwell Kadembo was out of the country and could not be traced. He averred that he had thus been prejudiced by the delay in bringing the matter to trial over the years and also by the fact that, due to the nature of his work, he was sometimes forced to cancel work-related trips. He further stated that he and his family also suffered anxiety and trauma owing to the fact that he had to go to court endlessly.

It was also the applicant's evidence that he has always been available to stand trial as he was always either at home or at work and that the police could have found him and served him with summons had they conscientiously made the effort  to do so.

The prosecutor declined to cross-examine the applicant. 

The record does not reflect any formal indication that the applicant did not wish to call any other witnesses but no further evidence was adduced on his behalf.

SUBMISSIONS BY THE APPLICANT BEFORE THE MAGISTRATE

In closing submissions before the magistrate, counsel for the applicant contended that the evidence that had been placed before the court showed that the applicant had always been available within the jurisdiction. Furthermore, that it was known to the police that he was an active member of the MDC-T political party who would attend his party's political rallies; that he was a Member of Parliament who would attend Parliament at least three (3) days a week and that he could be contacted telephonically. He submitted that if the police had, in the circumstances, acted professionally, they could have easily served him with summons. It was also his submission that no evidence had been placed before the court a quo, to show that the applicant had deliberately made efforts to ensure that he was not tried. It was for the State as dominus litis, he submitted, to take the necessary steps to ensure that the applicant was tried and not for the applicant to look for the police.

RESPONDENT'S EVIDENCE BEFORE THE MAGISTRATE

After the applicant's evidence, the State led evidence through the Investigating Officer, one Courage Chinyerere (hereafter referred to as 'Chinyerere'). Courage Chinyerere was not involved in the investigation of the matter before 2009. It was only in 2009 that he was tasked to take over as the Investigating Officer. He thus did not give evidence on any of the events or matters that took place before he became involved in the matter. Such events or matters were only placed before the court a quo by way of the prosecutor's address which was made before the witness testified.

The witness' evidence was to the effect that sometime in 2009 when he was tasked to take over as the Investigating Officer of the matter, there was an instruction on the docket for him to serve the accused with summons for trial and to thereafter serve the witnesses with the relevant subpoenae. He visited the address that was recorded on the docket as being the applicant's residential address but found that he no longer resided there. On the Officer-in-Charge's instructions, which were guided by the fact that the applicant was a Member of Parliament, he approached the Clerk of Parliament with a view to ascertaining the applicant's current address. It was a fruitless visit as the Clerk of Parliament did not have it.

Chinyerere eventually obtained the applicant's mobile phone number. He contacted the applicant, and, on the latter's suggestion, they agreed to meet at his legal practitioner's offices. As Courage Chinyerere was about to leave his office in order to go and meet with the applicant at the agreed venue, the latter then indicated that he (Chinyerere) should leave the summons with his secretary in Glen View. 

Courage Chinyerere did not do so.

On 27 June 2010, Chinyerere was tasked, together with other details, to attend and cover a Movement for Democratic Change (MDC-T) political party rally in Epworth. At the rally, he observed that the applicant was one of the guest speakers. At the end of the rally he approached the applicant and advised him that he wanted to serve him with summons but did not have the summons on him. The applicant's response was that he was at that time unable to attend court due to his Constitutional Parliamentary Select Committee (COPAC) duties. After the COPAC process was over Chinyerere phoned the applicant who requested that they meet at Harvest House, the headquarters of his political party. The applicant thereafter told him to meet with a named vendor but Chinyerere refused to do so and advised the applicant that he needed to serve him personally with the summons. 

They then met at Harvest House where he finally served the summons on the applicant on a date that he said he could not remember except that it was in 2011.

SUBMISSIONS BY THE STATE (RESPONDENT) BEFORE THE MAGISTRATE

The only submissions made by the prosecutor were by way of an opening address to the court a quo which address was made immediately before the leading of Courage Chinyerere in evidence. The prosecutor narrated the events that occurred during the period before Chinyerere's involvement as Investigating Officer of the case with particular reference to the State's efforts to bring the matter to trial and the applicant's frustration of the same.

He summarised the history of court hearings and postponements and stated the specific reasons why the trial did not commence on the various given set-down dates.

The first trial date that was set for this matter was 5 March 2007. On that date, the trial could not commence as State papers had not been served on the applicant. 7 May 2007 was then set as the new date for trial. The applicant did not appear in court on that date and a warrant was issued for his arrest.  The next trial date was 15 August 2007. Again, the trial did not commence on that day as the applicant's legal practitioner of choice, Mr Muchadehama could not attend. Thereafter, on 3 September 2007 and 23 October 2007 respectively, the trial did not commence and the matter was postponed - apparently by agreement of both parties. On 3 December 2007 the State was ready to proceed to trial, all the witnesses being present, but the matter was, for some unexplained reason, postponed to 31 January 2008.

On 31 January 2008 the applicant was removed from remand by the magistrate.

The prosecutor highlighted the fact that after 31 January 2008, numerous attempts had been made to resuscitate the matter by way of summons. The applicant had been contacted by the police in order for arrangements to be made for him to be served with summons to appear for trial on 11 March 2008 but the applicant suggested that the trial date be set for 4 April 2008 instead. Thereafter, the applicant could not be located for purposes of service of the summons for trial on the date that he had suggested. After he was finally located, he kept giving excuses to the police relating to his Parliamentary, and, subsequently, Constitutional Parliamentary Select Committee engagements and duties as reasons for not being able to avail himself for trial.

Note may be taken at this stage that this is a trend that appears to have continued even after Courage Chinyerere took over as Investigating Officer of the matter, as reflected by his evidence.

The prosecutor also submitted that the applicant's mobile phone number would frequently be unreachable when the police tried to contact him. Efforts made to locate him in Mbare, where his music group performed, were in vain. The police still failed to serve summons on him as they were only able to physically locate him at public gatherings or functions and they feared that any attempt to serve him thereat could ignite violence from members of his political party. For these reasons, another trial date, of 14 July 2010, failed to materialise. The police eventually decided to wait until the applicant's direct involvement in the Constitutional Parliamentary Select Committee had lessened. He was, after some difficulties, eventually served with the summons, as testified to by Courage Chinyerere, at the headquarters of his political party in January 2011 for trial on 11 January 2011.

The trial did not commence on 11 January 2011 as the applicant was not available.

The matter was re-set down for 15 February 2011 but on that date the applicant was attending to his Constitutional Parliamentary Select Committee responsibilities. After 15 February 2011, the police, yet again, faced difficulties in serving the applicant with summons for another date and only managed to serve him on 11 April 2011 for trial on 13 April 2011. On 13 April 2011, the applicant's legal practitioner, Mr Muchadehama was not in attendance, the defence claiming that they were not in possession of State papers. The applicant was remanded to 17 May 2011 on which date Mr Muchadehama gave notice that an application was going to be made for the matter to be referred to the Supreme Court sitting as the Constitutional Court.

MAGISTRATE'S REASONS FOR REFERRAL

The magistrate in the court a quo found that the raising of the question was not frivolous or vexatious and stated:

“This is a ruling to an application for referral of matter to the Supreme Court to determine whether or not accused person's right to a trial within a reasonable time, in terms of s 18(2) of the Constitution, has not been violated. It is this court's finding that this application is not frivolous and vexatious considering that the offence was committed in 2006 and accused was initially placed on remand on 29 December 2006 and further remand was refused on 5 March 2007. Application is hereby granted and matter is hereby referred to the Supreme Court for determination.”

THE ISSUE FOR DETERMINATION

The issue for determination by this court is whether the applicant's right to a trial within a reasonable time was violated, and, if so, whether he is entitled to a permanent stay of prosecution.

APPLICANT'S SUBMISSIONS TO THIS COURT

In heads of argument filed with this Court on the applicant's behalf, it was submitted, in one breath, that the applicant's trial failed to commence for reasons wholly attributable to the State. In the next breath, the submission was that the delays in commencing the trial were almost wholly attributable to the State. It was also submitted that the reasons advanced by Courage Chinyerere for the failure to serve summons on the applicant were not plausible as they were not truthful and had no sound legal basis. Furthermore, that when the State made further attempts to serve the summons on the applicant, he made it clear that he was going to resist being tried and was going to assert his rights to a fair trial. It was further submitted that the applicant's rights to personal liberty, as guaranteed in terms of section 13(1) and to protection of the law and a fair hearing within a reasonable time by an independent and impartial court, as guaranteed in terms of section 18(1) and (2) of the former Constitution, were violated. Section 13(1) was, however, not invoked in the proceedings in the court a quo and the proceedings before that court did not relate to his rights thereunder.

In his oral submissions, Mr Majuru, for the applicant, relied on the heads of argument filed of record and also highlighted the following: 

(i) The delay of 4 years and 7 months before the State made any serious attempts at trying the applicant;

(ii) The delay in commencing trial is presumptively prejudicial to the applicant's rights to a fair trial within a reasonable time;

(iii) The delays that occurred were almost wholly attributable to the State.

It was Mr Majuru's submission that the State had accepted that there was a prima facie inordinate delay in bringing the applicant to trial. He submitted that such acceptance obviated the need for the court to determine the first of the four factors that have been set out by case law as being relevant in matters of this nature. The focus would thus, he submitted, fall on the remaining three factors; the first being whether the Attorney-General had given a reasonable explanation for the delay. He contended that the prosecutor's decision in declining to cross examine the applicant meant that the State accepted or agreed with everything that the applicant said under oath in the proceedings before the magistrate and that by implication, therefore, the State had no plausible explanation for the delay.

As to the next factor, viz, whether the applicant asserted his right to a fair trial within a reasonable time, Mr Majuru made a bald unsubstantiated statement that the applicant had done so. 

Regarding the last factor, whether the applicant had been prejudiced by the delay, Mr Majuru referred the court to the case of In re Hativagone SC67-04, cited in the respondent's heads of argument, in which the following objectives of ensuring speedy trials are listed:

(i) To prevent oppressive pre-trial incarceration;

(ii) To minimise anxiety and concern of the accused; and

(iii) To limit the possibility that the defence will be impaired.

Mr Majuru submitted that in casu, the most serious consideration is that the applicant's defence will be impaired in that, due to the delay, he is no longer able to locate and will therefore be unable to call his sole witness, Onwell Kadembo, whose current whereabouts are now unknown to him.

RESPONDENT'S SUBMISSIONS TO THIS COURT

Counsel for the respondent, in his address to this Court, largely highlighted the submissions made in his written address. The submission was made that whilst the alleged delay in casu is prima facie inordinate, the explanation for it is, in the peculiar circumstances of the case, reasonable. It was also submitted that the delays in the commencement of the trial that occurred during the period between 14 December 2006 and 31 January 2008 when the applicant was removed from remand, were attributable to both the State and the applicant. It was further submitted that after the applicant counter-proposed 4 April 2008 as a trial date in place of 11 March 2008, the police encountered problems in locating him for purposes of service of summons and the trend continued until he was finally served in 2011. During this whole period the State was incapacitated from complying with section 140 of the Criminal Procedure and Evidence Act [Chapter 9:07] which requires service of summons to be effected:

“By delivering it to the accused personally, or, if he cannot conveniently be found, by leaving it for him at his place of business or most usual or last known place of abode with an inmate thereof.”

The respondent's counsel further highlighted that although police officers were, on a number of occasions, able to communicate with the applicant, his address for the purpose of service remained unknown to the State. The applicant thus made it impossible for the State to effect service of the summons on him.

The submission was also made that during the period from 31 July 2008 and 17 May 2010 the applicant never asserted his right to a speedy trial and that he waited until the time of reckoning to do so. Furthermore, that the State adduced evidence to the effect that, after the initial period referred to above, it had sought to resuscitate the matter but the applicant would shift goal posts whenever appointments were made with him by State officials. Consequently, it was contended, the applicant could not, in such circumstances, be heard to complain that he had been denied a speedy trial.

The respondent's counsel also submitted that the applicant did not suffer any prejudice as he was never incarcerated but continued to enjoy his status and all the privileges accorded to an Honourable Parliamentarian throughout the period of the alleged delay.

FACTORS TO BE TAKEN INTO ACCOUNT

This application requires the court to assess whether the applicant has been deprived of his constitutional right to a speedy trial. The factors that this Court is enjoined to consider in applications of this nature are now settled. These are;

(i) Firstly, the length of the delay- this being, to some extent, a triggering mechanism, for until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.

See Barker v Wingo (1972) 407 US SCt, cited with approval in In re Mlambo 1991 (2) ZLR 339 (S)…,.; In re Hativagone SC67-04…,.

(ii) The second factor is the reason given by the prosecution for the delay; 

(iii) The third is whether the accused person asserted his rights; and finally

(iv) The prejudice occasioned to the accused by the delay.

See Jonathan Mutsinze v The Attorney General CC13-15; Helen Matiashe v The Honourable Magistrate Mahwe N.O. & Anor CC12-14; In re Hativagone SC67-04; In re Mlambo 1991 (2) ZLR 339 (S)…,; Fikilini v Attorney-General 1990 (1) ZLR 105, 113A-H (SC).

THE LENGTH OF THE DELAY

It appears to me the following facts are not disputed;

(i) The fact of the applicant's arrest on 14 December 2006;

(ii) His being placed on remand on 29 December 2006;

(iii) Remand being refused on 5 March 2007;

(iv The subsequent numerous abortive trial dates; and

(v) The proceedings of 20 July 2011 during which the application for referral to this court was successfully made.

For the magistrate presiding over the matter in July 2011, some 4 years and 7 months after the arrest of the applicant and his being placed on remand, these facts would no doubt create an impression of a presumptively prejudicial delay.

Delays of relatively similar lengths were found to be presumptively prejudicial in In re Mlambo 1991 (2) ZLR 339 (S) (four (4) years and six (6) months); In re Masendeke 1992 (2) ZLR 5 (S) (seven (7) years.); Helen Matiashe v The Honourable Magistrate Mahwe N.O. & Anor CC12-14 (more than five (5) years). 

To this extent, the magistrate's finding can thus not be faulted.

It is settled that once it is accepted that the delay in the prosecution of the applicant is presumptively prejudicial, it then becomes necessary to consider the other pertinent factors in order to determine whether his rights under section 18 were breached.

THE EXPLANATION FOR THE DELAY

In the absence of specific reasons proffered by the applicant for the various aborted dates, the detailed and virtually unchallenged reasons proffered by the State for the failure of the trial to commence on the various given dates must be taken as the true explanation thereof. 

In my view, the State has proffered a reasonable explanation for the delay.

WHETHER THE APPLICANT ASSERTED HIS RIGHTS

The history of the matter shows that during the period after the applicant's arrest but before he was removed from remand, his trial was postponed several times. The postponements were occasioned by the conduct of both the State and the defence on the various dates. The applicant did not dispute the evidence led by the State that after he had been removed from remand he was contacted by the police and that it was he who counter-proposed the trial date of 4 April 2008 in place of 11 March 2008, being the trial date for which the police had intended to serve him with summons.

He nevertheless did not avail himself to the authorities.

The applicant was thus aware, certainly from March 2008, if not earlier, that the police were desirous of serving him with summons in order for his trial to commence. He kept giving excuses as to why he could not avail himself to stand trial, citing his Parliamentary engagements as well as his Constitutional Parliamentary Select Committee duties. He also vacated his known address without leaving a forwarding address and his address for service thus remained unknown. More than 3 years later, when he was eventually served with summons and appeared before a magistrate, the applicant then raised the issue of his right to a hearing within a reasonable time. What therefore emerges is that the applicant made it difficult for the summons to be served on him, despite being fully aware that the criminal charges that he was facing were not yet finalised and that the authorities were desirous of serving him with summons and having him tried.

In S v Mavharamu 1998 (2) ZLR 341 (H) it was stated that:

“What is emphasised in determining the cut-off point after which a delay becomes unreasonable is the balancing test, in which the conduct of both the prosecutor and the defendant are weighed.”

The conduct of the applicant in casu is not consistent with an assertion of his right to trial within a reasonable time. To the contrary, it points to a conscious or deliberate prolongation of the period of delay as he persistently made himself unavailable for service of summons. He seems to have adopted the attitude that perhaps the matter would simply fade into oblivion.

I find that he was the cause of the greater part of the unreasonable delay in the prosecution of the charges that he was facing.

PREJUDICE TO THE APPLICANT

There is no grounded basis proffered by the applicant as to how the applicant's defence has been impaired. An indication was made by the applicant, in his testimony before the magistrate, for purposes of the application for referral of this matter to this Court that he would have wished to call Onwell Kadembo as a defence witness. He said that the said Onwell Kadembo had since left the country and he was unable to trace him. However, the said Onwell Kadembo was said by State counsel to be a State witness, as reflected in the summary of the State case….,. 

In the event, the claim that his defence has been impaired cannot hold sway as the witness will be called by the State.

DISPOSITION

In casu, it is common cause that there is no pre-trial incarceration to talk about as the applicant was never incarcerated. Regarding anxiety and concern on the part of the applicant, it is evident from his behaviour that the applicant was in no haste to undergo his trial. He continued to enjoy his status and the prestige that is accorded to an Honourable Parliamentarian throughout the period that he now complains of as being inordinately and unreasonably long. The following was stated in S v Taenda 2000 (2) ZLR 394 (H)..,.:-

“In general, an unreasonable delay to the finalisation of criminal proceedings causes prejudice to the accused. He suffers social prejudice arising from doubt as to his integrity or conduct. The presumption of innocence does not, in the eyes of the public, family and friends, continue to operate as long as he is on remand…,.”

The applicant in casu did not suffer social prejudice.

He enjoyed the latitude of counter-suggesting trial dates to State authorities. He would indicate that he would avail himself for service of summons but would thereafter not honour his word to the police, thereby prolonging the period of the delay while he went about his business as usual. The applicant could have taken, but did not, the advantage of grasping at the opportunity to have his day in court and clear his name. He did not, at any stage, assert his right to a speedy trial during the period extending from 31 July 2008 to 17 May 2010. He, on the other hand, would shift goal posts in terms of appointments with State officials for the purposes of being served with process for the commencement of his trial. What is evident is that the applicant waited until the day of reckoning to raise the issue of his constitutional right to a trial within a reasonable time.

The applicant has not established any basis for this court to grant him relief in the form of a permanent stay of prosecution.

Where an informant gives information to the police involving the commission of an offence, the police are only expected to act on the information and cause an arrest where they are satisfied that the information given is reliable and discloses that a suspect has committed the offence. The persons effecting the arrest should first be satisfied that there is reasonable suspicion of commission of an offence before they effect an arrest….,.

It is not good enough to arrest a suspect purely on the basis that a finger has been pointed at him and based on simply an indication from formation that a suspect was linked to a syndicate in the habit of committing offences of a similar nature in the neighbourhood.

In order to establish the lawfulness of an arrest without a warrant, the onus lies upon the defendant to show probable cause or reasonable suspicion. In exercising the power of arrest, he must act as an ordinary honest man would act, on suspicions which have a reasonable basis and not merely on wild suspicion. See Rosseau v Boshoff 1945 CPD 135…,.

In other words, the arrestor must act on such circumstances as would ordinarily lead a reasonable man to form the suspicion that the arrestee has committed an offence. It is not the function of the police to arrest at large and to use the interrogatory process in order to determine whom to charge. See Feldman v Minister of Home Affairs 1992 (2) ZLR 304 (S)…,; Botha v Zvada & Another 1997 (1) ZLR 415 (S)…,.

The accused person was 43 years old at the time of the alleged offence, on 27 January 2000, and was residing at his homestead in the Wabayi area of rural Gwanda under Village Head, Matshina Ndlovu.

16 years and 4 months down the line he is appearing before us, at the age of 59, charged with the murder of his daughter, Sisasenkosi Moyo, who was aged 5 years when she died.

It is not very clear why it took six years to prosecute such a straightforward case.

The accused has waited for justice for 14 years not because of his own actions.

The accused has waited for justice for 9 years.

It is clear that this offence occurred on 12 October 2001 and the accused was arrested the next day, 13 October 2001, but the trial only resumed on 9 February 2015 - after a period of 13 years.

What emerged from the accused's explanation, in relation to this delay, which was uncontroverted by the State, is that after his arrest on 13 October 2001 the accused spent 1 year and 7 months in custody on remand after which he was granted bail pending trial. The accused was then indicted in 2004 but the trial did not take off. The accused remained in custody for 3 years and was released on bail in 2007. The accused was only re-indicted 5 years later, on 23 September 2014, after which the trial commenced on 9 February 2015.

Also pointed out in Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC) is that all arrests are prima facie illegal and the onus is upon the person who effected it to prove that the arrest was legally justified.

It is a fact that there has been a delay of four (4) years in finalizing this matter despite that the accused persons were not denying the charge of culpable homicide.

The blame lays squarely on the shoulders of the State which inexplicably believed a more serious charge of murder was warranted. It is prudent for the State to always carefully consider such cases and ensure that justice is not delayed to the prejudice of the accused persons. Besides ensuring that the rights of accused persons are protected such cases are low hanging fruits which reduce the backlog of cases.

In casu, both accused persons cannot be blamed for this inordinate delay.

They both religiously attended the Remand Court in Bikita for four (4) years incurring expenses. They could not plan their future without knowing how this matter would be finalised. Their lives were put in a freezer as it were. As an example, Accused 2 may well have decided not to marry for fear that if he did he may nonetheless leave the wife after being incarcerated. While the pre-trial incarceration of one (1) month which the accused persons suffered is insignificant, the delay of four (4) years is an important factor.