BHUNU J: The applicant is the Minister of Finance in the
Ministry of Finance. On the other hand the first to third respondents are
members of the Zimbabwe Republic Police engaged in criminal investigations
concerning cell phone lines 0772 568 807, 0774 346 082 and 0778 437 880 which
have to do with the applicant's calls.
The first respondent is the investigating
officer whereas the second respondent is the Officer Commanding, Criminal
Investigations (CID). The third respondent is the Commissioner General
responsible for all police operations in Zimbabwe.
The fourth respondent is a company in the business of
mobile telephone communication services and is responsible for operating the
above three cell phone numbers.
The police are currently investigating allegations
against the applicant to the effect that he unlawfully authorized an employee
in his Ministry one Petronella Chishawa to go on various foreign trips on
special per diem rates thereby showing favour to the said Petronella Chishawa.
In the course of investigations the first respondent
first sought to obtain a record of information pertaining to the above three numbers
on 20 June 2011 from the fourth respondent without success.
Having failed to obtain the required information upon
request the police invoked the provisions of s 54 (2) (a) and (b) of the Criminal
Procedure and Evidence Act [Cap. 9:07].
That section permits police to enter premises and obtain evidence upon
reasonable suspicion that relevant information may be obtained therein. The
section provides as follows:
“54 Entering of premises for purposes of obtaining evidence
(1). Where a police officer in the
investigation of an offence or alleged offence reasonably suspects that a
person who may furnish information with reference to any such offence is upon
or in any premises, he may, without warrant, enter the premises for the purpose
of interrogating such person and obtaining a statement from him:
Provided that a police officer shall
not enter any dwelling in terms of this section without the consent of the
occupier thereof.
(2) Where a police officer of such class as
the Minister may designate considers on reasonable grounds that it is necessary
for the purpose of investigating or detecting an offence to examine any books,
documents or other records, he may, without warrant—
(a) enter any premises for the purpose of
examining such books, documents or other records; and
(b) require from any person thereupon or
therein the production then and there of such books, documents or other records
which are or have been upon or in the premises or in the custody or under the
control of any person by whom the premises are occupied or used; and may
examine and make extracts from and copies of all such books, documents and
other records:
Provided that a police officer shall not
enter any dwelling in terms of this subsection without the consent of the
occupier thereof.”
The above
section quite clearly authorizes the police to obtain without warrant the
required information not only upon reasonable suspicion that a crime has been
committed but also for purposes of detecting crime.
Out of an
abundance of caution the police in an
exparte application also obtained a search warrant in terms of s 49 as read
with s 50 of the Act authorizing them to enter the fourth respondent's premises
and seize the required information in the form of records pertaining to the
call history of the three cell phone lines in question.
The applicant
has since appealed to this Court for an order setting aside the search warrant.
He has now filed an urgent chamber application seeking to interdict the first, second
and third respondents from accessing any information concerning his calls and
the fourth respondent from providing the required information.
In
determining the application the Court is duty bound to determine the
applicant's prospects of success on appeal. The first hurdle which the
applicant has to surmount is whether or not the search warrant is appeallable.
It is
trite that the magistrate's court is a creature of statute. It has no inherent
jurisdiction. It thus can only do that which it is empowered to do by statute
as it has no power of its own other than that conferred upon it by statute. The
right to appeal against the Magistrates' Court decision in criminal proceedings
is conferred upon it under s 60 of the Magistrates Court Act [Cap 7:10] which provides that:
“60 Appeal from magistrates courts in criminal
cases
(1) Subject
to this section and any other enactment, any person who is convicted of any offence by a court may
appeal to the High Court against the conviction and additionally, or
alternatively, any sentence or order of the court following upon the
conviction?
(2)….
(3) A
person who is convicted of any offence by a court and who is discharged after
conviction in terms of any provision of the Criminal Procedure and Evidence Act
[Chapter 9:07] may appeal against
such conviction to the High Court.
(4) Any person who has been convicted by a
court but sentenced by a judge of the High Court in terms of Part IX of the
Criminal Procedure and Evidence Act [Chapter
9:07] may appeal to the Supreme Court against such conviction or any
sentence imposed upon him or any order of court following upon such sentence as
though he had been both convicted and sentenced in the High Court.”
It
is self evident that the Magistrates Court Act makes no provision for an appeal
to any court against the issuance of a search warrant in terms of s 54 of the
Criminal Procedure and Evidence Act. I have also perused the Criminal Procedure
and Evidence Act and I am satisfied that it makes no provision for an appeal
against a search warrant issued by a magistrate in terms of the Act.
Section
60 of the High Court Act [Cap 7: 06]
limits the right of appeal in criminal cases from the Magistrates Court to
those aggrieved by conviction or sentence or where the right of appeal to the
High Court has been conferred by statute. Despite being specifically asked, counsel
for the applicant has been unable to point to any statutory provision which
entitles an aggrieved person to appeal to the High Court against the issuing of
a search warrant by a magistrate.
In
the absence of any right of appeal to the High Court, it appears to me that a
search warrant issued by a magistrate can only be impugned on review and not
appeal. That being the case, the prospects of the High Court entertaining the
appeal pending before it in respect of this matter are pretty deem indeed.
The
applicant also belatedly almost as an afterthought sought to attack the search
warrant on the basis of irregularity complaining that the magistrate made no
record of the proceedings leading to the issuing of the search warrant. That
complaint amounts to an attack on the validity of the proceedings before the
magistrate.
It is
correct to say that in terms of s 5 of the Magistrates Court Act [Cap. 7:10] the Magistrates Court is a
Court of record. The magistrate is therefore, duty bound to maintain an accurate
written record of all proceedings before him. See S v Ndebele 1988 (2) ZLR 249. No record of proceedings has however been
placed before me to ascertain what transpired at the magistrates court. I was
simply told from the bar that the magistrate did not record the proceedings.
Apart from counsel's mere say so from the bar no effort was made to contact
either the magistrate or the clerk of court for an explanation.
In
the absence of an explanation from the magistrates' court I am not prepared to
condemn the magistrate and hold that he did not do his job properly. There is a
presumption in favour of validity of all official documents issued by
government officials in the course of duty. The search warrant is therefore
considered valid until proven otherwise.
The onus
was on the applicant to prove on a balance of probabilities that the warrant is
invalid on account of the alleged irregularity. This, the applicant has failed
to do. In any case such a complaint ought to have been brought by way of review
after affording the magistrate a chance to be heard.
The main
thrust of the applicant's argument is however based on the common law rules
enunciated in the case of Phiri &
Others v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR45 (S) to the
effect that the noting of an appeal suspends the decision appealed against.
That case should however be contrasted with the decision of MUNGWIRA J in the
case of Founders Building Society v
Mazuka (1) ZLR 526 531 in which she quoted Gillespie with approval in the
case of Vengesai & Others v Zimbabwe
Glass industries 1998 ZLR 593 (H) at 598 where the learned judge remarked
that:
“In stating the common law, CORBETT JA referred to the automatic stay of execution
upon the noting of appeal, as a general rule of practice. That is, not a rule
of law, but a long established practice regarded as generally binding, subject
to the court's discretion. The concept of a rule of practice is peculiarly
appropriate only to superior courts of inherent jurisdiction. Any other court,
tribunal or authority is a creature of statute and bound by the four corners of
its enabling legislation. Moreover, the authorities cited by CORBETT JA are
authorities relevant to appeals from superior courts
…
It follows that in the absence of
any statute specifically conferring such discretion on an inferior tribunal or
authority or otherwise regulating the question of enforcement of judgments
pending an appeal from that authority, no such discretion can exist. Such a
court or authority can exercise only the powers conferred by the statute”
The
applicant has failed to point to any legislation authorizing the automatic
suspension of the search warrant upon appeal in the magistrates court. I must
however state that while I prefer the dicta of GILLESPIE J in the Vengesai case
(supra) I am bound by the decision of
Mc NALLY JA emanating from the Supreme Court in the Phiri case (supra).
That
principle is however, inapplicable in this case for the simple reason that the
appeal that the applicant has lodged appears to be a nullity and of no force or
effect. It is trite that for an applicant to succeed in an application for an
interdict, he must establish a clear right. In this case it can not be said
that the applicant has established a clear right when the basis of the application
is founded on what appears to be a nullity.
Viewed
from a different angle, there was no appeal against the police's bid to proceed
in terms of s 54 (2) (a) and (b). There is also no order barring the police
from proceeding in terms of that section.
On the
facts before me the allegations made by the police give rise to a reasonable
suspicion that an offence may have been committed emanating from Ms Petronella
Chishawa's trips abroad. It is not denied that Ms Chishawa works in the Ministry
of Finance where the applicant is the responsible minister. Whether or not the
applicant showed favour to her when she embarked on the said trips is a matter
of evidence. It is not unreasonable for the police to suspect that such
evidence may be found in the record of the history of calls he might have made
to his subordinates or colleagues. For that reason, I have no basis for barring
the police from proceeding in terms of s 54 (2) (a) and (b) of the Criminal
Procedure and Evidence Act. There being a reasonable suspicion the question of
inversion of privacy does not arise.
While the
applicant has the right to privacy under section 18 of the Constitution, that
right is not absolute. The police also have the legal right to detect,
investigate and arrest suspects. Thus where the police have reasonable cause to
investigate crime the subject's right to privacy must of necessity give way for
the common good and public interest to fight crime.
The law
does not prohibit lawful inversion of privacy. What it prohibits is wanton and
unlawful inversion of privacy. In this case as the police appear to be acting
according to law, the application can not succeed. Not surprisingly the 4th
respondent has pledged to abide by the decision of this Court and not take
sides one way or the other.
It is accordingly ordered:
1.
That the application for an
interdict barring the first, second and third respondents from accessing any
information concerning the applicant's calls be and is hereby dismissed.
2.
That the applicant's
application for an interdict barring the fourth respondent from providing the first,
second and third respondents with any information concerning the applicant's
calls be and is hereby dismissed.
3.
The fourth respondent shall
abide by this Court's decision.
4.
The applicant shall bear the
costs of suit.
Atherstone
& Cook, applicant's Legal Practitioners
Attorney
general's Office the,
1st, 2nd and 3rd Respondents' Legal Practitioners.
