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.
The application is accordingly dismissed with no
order as to costs.
