Law Portal
Zimbabwe

Welcome To Law Portal

Welcome, Guest!
[Help?]

HHH156-11 - TENDAI BITI vs CHIEF SUPERINTENDENT MAJUTA and SENIOR ASSISTANT COMMISSIONER NYATHI and COMMISSIONER GENERAL CHIHURI and ECONET WIRELESS ZIMBABWE LIMITED

  • View Judgment By Categories
  • View Full Judgment


Procedural Law-viz warrant of entry re section 54(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of evidence re warrant of entry iro section 54 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz warrant of entry re search warrant iro section 49 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz criminal appeal re appealability of a search warrant.
Procedural Law-viz criminal review re section 5 of the Magistrates Court Act [Chapter 7:10].

Police Investigations, Arrest, Search and Seizure With or Without a Warrant re: Approach

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 section 54(2)(a) and (b) of the Criminal Procedure and Evidence Act [Chapter 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 ex parte application, also obtained a search warrant in terms of section 49 of the Criminal Procedure and Evidence Act [Chapter 9:07] as read with section 50 of the Criminal Procedure and Evidence Act [Chapter 9:07] 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 appealable.

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 section 60 of the Magistrates Court Act [Chapter 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 [Chapter 7:10] makes no provision for an appeal to any court against the issuance of a search warrant in terms of section 54 of the Criminal Procedure and Evidence Act [Chapter 9:07]. I have also perused the Criminal Procedure and Evidence Act [Chapter 9:07] and I am satisfied that it makes no provision for an appeal against a search warrant issued by a magistrate in terms of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 60 of the High Court Act [Chapter 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.

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.
Back Main menu

Categories

Back to top