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.
Accordingly, the application is dismissed. There
will be no order as to costs.
