This
is an application for leave to appeal against the first respondent's
acquittal by the second respondent at the close of the State case.
The
applicant is the Prosecutor General of Zimbabwe. The first respondent
is a well-known legal practitioner. The
second respondent is a magistrate employed by the Judicial Service
Commission and is based at Harare Magistrates Court. The second
respondent is cited nominus
officiae.
The
first respondent was arraigned before the second respondent facing a
charge of contravening section 184(1)(g) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23]
which relates to defeating or obstructing the course of justice by
resisting, hindering or disturbing a police officer in the execution
of his or her duties knowing that the police officer is a police
officer exercising or executing his or her duties or realising that
there is a real risk or possibility that the police officer may be a
police officer executing his or her duties….,.
The
first respondent was arrested on 17 March 2013 and granted bail
pending trial by this court on 25 March 2013. She was then arraigned
before the second respondent on 10 June 2013 and acquitted on 26
November 2013.
The
charge preferred against the first respondent is that on 17 March
2013, at Number 2023, Area D, Westgate, Harare the first respondent,
well-knowing that Chief Superintendent Luckson Mukazhi, Detective
Assistant Inspector Wilfred Chibage and Detective Constable Ngatirwe
Mamiza were police officers in the execution of their duties carrying
out searches at the said premises as well as Number 14 Bath Road,
Belgravia, Harare, as per the search warrant, unlawfully disturbed,
resisted or hindered the said police officers by shouting the
following words;
“Stop
whatever you are doing, its unconstitutional, illegal, undemocratic.
You are confused cockroaches. You are Mugabe's dogs” in order to
refrain them from conducting the search and that she proceeded to
take photographs and/or videos threatening to send such photographs
or videos to the international media. It is also alleged that the
first respondent closed the gate at Number 2023, Area D, Westgate,
Harare in order to prevent the said police officers from leaving the
premises with some recovered documents and that this delayed the
search at Number 14 Bath Road, Belgravia resulting in the removal of
four central processing units and 3 computer monitors from the said
premises which the police wanted to recover.
A
summary of the allegations against the first respondent are as
follows;
On
17 March 2013, police officers were at Number 2023, Area D, Westgate,
Harare, owned by Tabani Mpofu, armed with a search warrant to search
the premises. The police officers were investigating a case of
possessing articles for criminal use as defined in section 40 of the
Criminal Code [Chapter
9:23].
It is alleged that the police officers, after searching the house,
proceeded to search Tabani Mpofu's five motor vehicles in the yard
and that the first respondent arrived.
The
first respondent is said to have uttered the words referred to
earlier on without identifying herself and that as a result the
police officers stopped the search and proceeded to show the first
respondent the search warrant. Instead, the first respondent is said
to have proceeded to take photographs or videos using her cellphone
and thus hindered or disturbed the police officers in carrying out
their duties moreso as this caused a number of people to gather at
the scene. It is further alleged that the first respondent closed the
gate at the premises in order to stop Detective Assistant Inspector
Chibage from leaving the premises with some recovered documents. At
that stage, Chief Supritendent Mukazhi proceeded to arrest the first
respondent and tried to take her cellphone but the first respondent
hid it in her bra and proceeded to delete the photographs and videos
after which she handed over the cellphone. It is also alleged that
the police officers were delayed to proceed to Number 14 Bath Road,
Belgravia, Harare where they wanted to conduct another search and
that the first respondent, who was now under arrest, threatened to
urinate or defecate in the police motor vehicle. The State alleges
that this delay caused the removal of some computers at No 14 Bath
Road, Belgravia, Harare.
The
first respondent pleaded not guilty to the charge.
In
her Defence Outline, the first respondent pointed out that both the
charge sheet and the State Outline disclose no offence. In fact, that
the first respondent said that she is the wronged party as she was
arrested during the course and scope of her duties as a legal
practitioner. The first respondent berated the police officers for
failing to hand over or show her the search warrant. She further
denied uttering the words alleged and pointed out that even if she
had uttered such alleged words that would not constitute an offence.
In fact, the first respondent said the alleged words were never put
to her in her warned and cautioned statement and that this is simply
an after-thought on the part of the police.
The
first respondent's version of events, as per her Defence Ooutline,
is that she received a distress text message from Tabani Mpofu and
that Tabani Mpofu's relative led her to the said premises in
Westgate. Upon her arrival she said the police had completed the
search and that no search warrant was shown to Tabani Mpofu hence she
asked one of the police officers leaving the premises with a big bag
to show her the search warrant but the police officer said he would
avail it at the police station together with the inventory of items
seized. At that stage, the first respondent said one of the police
officers started to reverse Tabani Mpofu's motor vehicle and the
other police officer falsely alleged that she was taking photographs
or videos and demanded that she hands over her cellphone but she
refused and put her cellphone in her hand bag as the police officer
tried to forcefully take it.
The
first respondent said it is at that stage that she was told that she
was under arrest and was lodged at the back of the police truck after
which she was driven to Number 14 Bath Road, Belgravia where she
still remained in the police motor vehicle when another group of
police officers arrived. The first respondent said it is at that
stage that she was handcuffed and her handbag was forcibly searched.
She was later taken to the police station and that both the search
warrant and the said inventory were not shown to her.
The
first respondent pointed out that she is not a Shona-speaking person
hence the words attributed to her are false and were not even part of
the Request For Remand Form 242.
The
first respondent stated that her arrest and subsequent prosecution is
purely malicious because after her arrest the police decided to
interrogate other matters irrelevant to this case by visiting the
High Court to check her registration papers and visiting her former
husband. The first respondent said her service provider would show
that no photographs or video footage was taken using her cellphone.
She said she would call Tabani Mpofu, his wife, and one Alex Magaisa,
the relative who took her to Tabani Mpofu's residence. All in all,
the first respondent denies hindering police in their work. She
reiterated that when she got to Tabani Mpofu's residence the police
had completed the search. The first respondent is of the view that it
is, in fact, the police who hindered her from carrying out her duties
as a legal practitioner.
The
State led evidence from three witnesses who are Chief Superintendent
Mukazhi, Detective Assistant Inspector Chibage and Detective
Constable Ngatirwe Mamiza.
At
the close of the State case, the first respondent successfully
applied for her discharge in terms of section 193(3) of the Criminal
Procedure and Evidence Act [Chapter
9:07].
It is this decision by the second respondent which has irked the
applicant hence this application for leave to appeal.
In
the proposed grounds of appeal, the applicant insists that the
evidence led by the State shows that the respondent closed the gate
of Tabani Mpofu's residence thus hindering and disturbing the
police from taking exhibits. The applicant also insists that the
evidence led by the State shows that the first respondent uttered the
alleged words and that the uttered words indeed hindered and
disturbed the police in the execution of their duties.
The
first respondent has raised three points in limine
which I need to deal with before I even address the merits of this
application. The three points in limine
are as follows;
1.
That there is no proper application before this court as the
applicant has brought this application for leave to appeal in terms
of section 61 of the Magistrates Court Act [Chapter
7:10]
instead of section 198(4) of the Criminal Procedure and Evidence Act
[Chapter
9:07].
2.
That this application for leave to appeal is invalid as the founding
affidavit by one Mr Mapfuwa is irregular and was improperly
commissioned by an officer of the Zimbabwe Republic Police (ZRP) an
institution that has a substantial interest in this matter.
3.
That there has been an inordinate and unexplained delay in mounting
this application for leave to appeal thus warranting its dismissal
with costs on a higher scale.
I
now deal with the three points in limine
seratium.
1.
Citation
of section 61 of the Magistrates Court Act [Chapter
7:10]
instead of section 198(4) of the Criminal Procedure and Evidence Act
[Chapter
9:07]
Counsel
for the applicant, in his submissions, conceded that the applicant
should have sought leave to appeal in terms of section 198(4) of the
Criminal Procedure and Evidence Act [Chapter
9:07]
instead of section 61 of the Magistrate's Court Act [Chapter
7:10].
The provisions of section 198(3) and section 198(4) of the Criminal
Procedure and Evidence Act [Chapter
9:07]
are as follows;
“198(3) If,
at the close of the State case for the prosecution, the court
considers that there is no evidence that the accused committed the
offence charged in the indictment, summons or charge, or any other
offence of which he might be convicted thereon, it shall return a
verdict of not guilty.
(4)
If the Attorney General (read Prosecutor General) is dissatisfied
with a decision –
(a)….,.
(b)
Of a magistrate, in terms of subsection (3) he may with
the leave of a judge of the High Court,
appeal against the decision to the High Court.”…,.
The
provisions of section 198(3) and section 198(4) of the Criminal
Procedure and Evidence Act [Chapter
9:07]
have been interpreted in a number of cases. See Attorney
General v Bennet
2011
(1) ZLR 369 (S); Attorney
General v Bvuma & Anor
1998 (2) ZLR 96 (S); Attorney
General v Tarwirei
1997 (1) ZLR 575 (S); Attorney
General v Mzizi
1991 (2) ZLR 321.
The
provisions of section 61 of the Magistrates Court Act [Chapter
7:10]
are as follows;
“61
Prosecutor General may appeal to High Court on a point of law or
against acquittal.
If
the Prosecutor General is dissatisfied with the judgment of a Court
in a criminal matter –
(a)
Upon a point of law; or
(b)
Because it has acquitted or quashed the conviction of any person who
was the accused in the case on a view of the facts which could not
reasonably be entertained;
he
may, with the leave of a judge of the High Court, appeal to the High
Court against that judgment.”
Counsel
for the applicant, in my view, correctly conceded that an application
for leave to appeal in terms of section 61 of the Magistrates Court
Act [Chapter
7:10]
relates to a judgment which envisages a situation where all the
proceedings are terminated or a full trial has been completed rather
than a discharge at the close of the State case. Counsel for the
applicant,
however, submitted that this error by the applicant is not fatal to
this application for basically two reasons;
(i)
The first reason advanced by counsel for the applicant is that the
standard of proof or the applicable principles to be considered in
relation to section 198(4) of the Criminal Procedure and Evidence Act
[Chapter
9:07]
are the same as those applicable in terms of section 61 of the
Magistrate's Court Act [Chapter
7:10].
(ii)
The second reason, in his view, is that the citation of the wrong
provision of the law is not prejudicial to the first respondent.
I
do not share the same views with counsel for the applicant.
There
is a clear legal distinction between section 61 of the Magistrates
Court Act [Chapter
7:10]
and section 198(4) of the Criminal Procedure and Evidence Act
[Chapter
9:07].
This is precisely why the first respondent, in her opposing papers,
raised this objection. The applicant, in its wisdom or lack thereof,
did not seek to amend their papers or at least to make such an
application at the commencement of the hearing of the application.
In
my view, the use or citation of the wrong provision by the Prosecutor
General, who is expected to be well-informed in terms of the law, is
not an issue which can simply be overlooked by this court or wished
away. It is clear that section 61 of the Magistrates Court Act
[Chapter
7:10]
arises at the conclusion of the trial whereas section 198(4) of
Criminal Procedure and Evidence Act [Chapter
9:07]
applies during the course of the trial at the close of the State
case.
I
am surprised that despite this concession by the applicant there was
no attempt by the applicant to seek condonation. The attitude by the
applicant seems to be that I should grant such condonation mero
muto.
However, such a glaring failure by the applicant to cite the correct
provision of the law cannot be said to be inconsequential or condoned
mero
motu.
The first respondent is entitled to know in terms of which provision
the applicant has applied for leave to appeal as this will inform her
response. As already said, no application for condonation has been
made.
I
therefore find merit in the first respondent's protestation in this
regard and would uphold the point in limine….,.
3.
Delay
in Bringing This Application
The
first respondent was acquitted by the trial court on 26 November 2013
and it is common cause that full reasons for the acquittal were
availed to all the parties concerned on the same day.
The
applicant filed this application for leave to appeal on 29 April 2014
- after a period in excess of 5 months. According to counsel for the
applicant,
the full transcript of record of proceedings became available on 27
February 2014. Thereafter, it took the applicant two months to file
this application.
The
first respondent contends that there has been an inordinate and
unexplained delay in bringing this application and that this is
prejudicial to the first respondent. The first respondent submitted
that this conduct by the applicant ought to be admonished by an order
of dismissal of the application with costs on a higher scale.
It
is not in issue that there is no time limit prescribed in section
198(4) of the Criminal Procedure and Evidence Act [Chapter
9:07]
within which an application to seek leave to appeal should be made by
the Prosecutor General. It is, however, trite that such an
application should be made within a reasonable time or period. See
Attorney
General v Lafleur & Anor
1998 (1) ZLR 520 (H); Attorney
General v Bvuma & Anor
1998 (2) ZLR 96 (S).
In
my view, the overriding reason for this principle is the need for
finality in litigation and to ensure that the interests of justice
are safeguarded.
The
right to a fair hearing is enshrined in section 69 of our
Constitution and this court has the uttermost duty to protect that
right. It is couched as follows;
“69.
Right to a fair hearing
(1)
Every person accused of an offence has a right to a fair and public
trial within
a reasonable time
before an independent and impartial court.
(2)
In the determination of civil rights and obligations, every person
has a right to a fair, speedy and public hearing within
a reasonable time
before an independent and impartial court, tribunal or other forum
established by law”…,.
In
my view, what constitutes reasonable time is a matter of fact and
depends on the circumstances of each case.
Mr
Mapfuwa, in his answering affidavit, conceded that there was indeed a
delay in bringing
this application but attributes this delay to the need to have the
record of proceedings transcribed. He said this is not a process
directly controlled by the applicant. In his submissions, counsel for
the applicant said he had no explanation to make as to why, after the
transcript of the record was availed on 27 February 2014, it took the
applicant two months to file this application on 29 April 2014.
There
is no meaningful explanation by the applicant for the delay in making
this application other than to try and blame those responsible for
the transcription of the record. This is difficult to appreciate in
view of the fact that the reasons for the discharge of the first
respondent at the close of the State case were availed immediately to
the two trial prosecutors. I have no doubt in my mind that the time
taken to approach this court is inordinate and that there was great
need for the applicant to fully explain this delay of five
(5)
months in view of the facts of this case. While I appreciate that
there is not timeframe in the relevant provision to bring this
application it should be noted that this is not a blank cheque
availed to the Prosecutor General to bring such an application at any
time.
I
wish to clearly point out that such a delay should always be
juxtaposed with the rights of an accused person who would have been
acquitted by a competent court. Such an accused person would have
gone home to celebrate with family and friends only to be told and
advised some odd five (5) months later that the celebration is
premature and that the battle has just began.
The inference one can therefore draw is that such conduct ceases to
be prosecution but persecution as such delay is not only unreasonable
and prejudicial to an accused person but flies in the face of the
provisions of section 69 of the Constitution.
I
have no doubt in my mind, after considering the facts of this case,
that it should be made abundantly clear to the Prosecutor General
that the Prosecutor General is not at liberty to come to this court
any time the Prosecutor General so wishes and seek leave to appeal.
Such conduct should be frowned upon by this court and ought to be
admonished without any hesitation by dismissing such an application
for leave to appeal.
It
is therefore my finding that there has been an inordinate and
unexplained delay in bringing this application. I would therefore
uphold the point in
limine
taken by the first respondent.
Since
I have upheld two of the three points in
limine
raised by the first respondent it is now unnecessary for me to go
into the merits of this application. I
am not persuaded that this is a proper case for which I should award
costs against the applicant on a higher scale. Accordingly, it is
ordered that;
The
application for leave to appeal be and is hereby dismissed with
costs.
