MUSAKWA
J:
In
this application the applicant seeks permanent stay of prosecution of
charges preferred against him in 2016.
The
applicant was summoned to court on three counts of violating the Road
Traffic Act [Chapter
13:11].
The first such appearance was 7 January 2016. Trial did not commence.
According to the applicant trial has failed to commence despite
appearing before the court on numerous occasions. This is because
witnesses would not attend. The applicant avers that every time he
was summoned to court he would be told to go back home and await
further summons. Thus according to the applicant there has been an
unreasonable delay in his prosecution and this has resulted in
prejudice.
The
second respondent contends that the matter is not properly before the
court. According to the second respondent, the matter should have
been referred by the lower court.
In
his submissions Mr Mugiya
argued that it is not correct that the application should have been
made in the lower court. He pointed out that section 167A of the
Criminal Procedure and Evidence Act [Chapter
9:07]
allows a party to apply for permanent stay of prosecution. Mr Mugiya
further submitted that in the present case a record of proceedings
was not even opened in the lower court. As to why this was not so, he
submitted that this is because there were no witnesses. He further
submitted that it is not the magistrate but prosecutor who initiates
the opening of a record. In this respect he referred to section 140
of the Criminal Procedure and Evidence Act.
Why
a record of proceedings was not opened from the onset when the
applicant first appeared before the lower court is a mystery. The
relevant provision is section 139 and not 140 and it states that -
“Where
a public prosecutor has, by virtue of his office, determined to
prosecute any person in a magistrates court for any offence within
the jurisdiction of that court, he shall forthwith lodge with the
clerk of the court a statement in writing of the charge against that
person, describing him by his forename, surname, place of abode and
occupation and setting forth shortly and distinctly the nature of the
offence and the time and place at which it was committed.”
Therefore
the initial summoning of the applicant should have triggered the
opening of a record of proceedings.
If some other practice is obtaining in the Magistrates Court, it is
not in keeping with the above provision.
Mr
Mugiya
also submitted that there was no need to lead evidence as all facts
are common cause. What is in dispute is the procedure. He insisted
that the State has not demonstrated what evidence should have been
led before the lower court.
Mr
Mugiya
also made an analogy with a dismissal for want of prosecution in
terms of section 160(2) of the Criminal Procedure and Evidence Act.
In support thereof he made reference to the case of S
v Johannes Tomana
HH531-17.
A
quick check of S
v Johannes Tomana supra showed
that the judgment relates to recusal. There is nothing in that
judgment about dismissal for want of prosecution.
In
insisting that evidence ought to have been led before the lower
court, Mr Nyahunzvi
submitted that this was in order for the applicant to assert his
rights. He further submitted that there is no supporting evidence to
back the submissions made by Mr Mugiya.
As such, Mr Nyahunzvi
submitted that not sufficient information has been placed before the
court on account of the incorrect procedure that was adopted.
Whether
There Should Have Been A Referral To This Court
Mr
Nyahunzvi
submitted that the application should have been referred to this
court by the lower court. Unfortunately he cited no provision that
enjoins a lower court to adopt such a procedure. The referral of
constitutional matters from Magistrates Courts is provided in the
Constitution of Zimbabwe. In this respect section 175(4) of the
Constitution provides that -
“(4)
If a constitutional matter arises in any proceedings before a court,
the person presiding over that court may and, if so requested by any
party to the proceedings, must refer the matter to the Constitutional
Court unless he or she considers the request is merely frivolous or
vexatious.”
From
the above provision it is apparent that the maxim expressio
unius est exclusio alterius applies.
The submission that the matter should have been before this court by
way of referral was made with subsection (4) in mind but it was
overlooked that the provision does not encompass the High Court.
Whether
The Application Has Merit
It
is evident that the High Court has jurisdiction to determine
constitutional matters that are not for the exclusive jurisdiction of
the Constitutional Court. In this respect see section 171(1)(c) of
the Constitution which provides that -
“(1)
The High Court —
(a)
has original jurisdiction over all civil and criminal matters
throughout Zimbabwe;
(b)
has jurisdiction to supervise magistrates courts and other
subordinate courts and to review their decisions;
(c)
may decide constitutional matters except those that only the
Constitutional Court may decide; and
(d)
has such appellate jurisdiction as may be conferred on it by an Act
of Parliament.”
The
jurisdiction of this court having been established, the issue is
whether the applicant has made a case for permanent stay of
proceedings.
The
applicant has two hurdles to overcome.
(a)
The first one is that even if this court has jurisdiction to grant an
application for permanent stay of prosecution, can the court
entertain any matter that is not before it?
This
is because of section 167A of the Criminal Procedure and Evidence Act
which provides that -
“(1)
A court before which criminal proceedings are pending shall
investigate any delay in the completion of the proceedings which
appears to the court to be unreasonable and which could cause
substantial prejudice to the prosecution, to the accused or his or
her legal representative, to a witness or other person concerned in
the proceedings, or to the public interest.
(2)
In considering whether any delay is unreasonable for the purposes of
subsection (1), the court shall consider all the circumstances of the
case and in particular the following —
(a)
the extent of the delay;
(b)
the reasons advanced for the delay;
(c)
whether any person can be blamed for the delay;
(d)
whether the accused has raised such objections to the delay as he or
she might reasonably have been expected to have raised;
(e)
the seriousness, extent or complexity of the charge or charges;
(f)
any actual or potential prejudice which the delay may have caused to
the State, to the accused or his or her legal representative or to
any other person concerned in the proceedings;
(g)
the effect of the delay on the administration of justice;
(h)
the adverse effect on the interests of the public or the victims in
the event of the prosecution being stopped or discontinued.
(3)
If after an investigation in terms of subsection (1) the court finds
that —
(a)
the completion of the proceedings is being unduly delayed; or
(b)
there has been an unreasonable delay in bringing the accused to trial
or in completing the trial;
the
court may issue such order as it considers appropriate in order to
eliminate the delay and any prejudice arising from it or to prevent
further delay or prejudice, including an order —
(i)
refusing further postponement of the proceedings;
(ii)
granting a postponement subject to such conditions as the court may
determine;
(iii)
that the prosecution of the accused for the offence be permanently
stayed;
(iv)
that the matter be referred to the appropriate authority for an
administrative investigation and possible disciplinary action against
any person responsible for the delay.
(4)
The Prosecutor-General may appeal against an order referred to in
subsection (3)(iii) as if it were an acquittal of the accused.”
Clearly,
the criminal proceedings against the applicant are not pending before
this court.
Mr
Mugiya's
submission that this court has jurisdiction can only be valid to the
extent that the criminal proceedings are pending before this court.
(b)
Even assuming that the matter can be entertained there is also the
insurmountable hurdle that no evidence was led to prove the alleged
unreasonableness in the delay in the applicant's prosecution and
the prejudice that has been occasioned.
The
weight of legal authorities on this aspect is that viva
voce
evidence must be led. In this respect see Jabulani
Sibanda v S
CCZ 4/17 and the authorities cited therein.
It
is erroneous for Mr Mugiya
to argue that the facts are common cause because they have not been
disputed by the respondent. As was held by GARWE JCC in Jabulani
Sibanda v S supra
at p 5-
“These
cases however, were decided in the context of an application for a
permanent stay of criminal proceedings. In such an application, an
applicant has to traverse various factors such as the length of the
delay, the reasons for such delay, the question of prejudice in the
conduct of the trial and whether the applicant asserted his right to
a speedy trial.”
In
S
v Manyara CCZ
3/15 PATEL JA had this to say at p 4-
“Where
an accused person alleges any infringement of his or her right to a
fair trial within a reasonable time, the factors that are to be
ventilated and determined are now well settled. They are: the length
of the delay; the reason or explanation and responsibility for the
delay; the assertion of his or her rights by the accused; and
prejudice to the accused arising from the delay. See In
re Mlambo
1991 (2) ZLR 339 (S); S
v Nhando
& Others
2001 (2) ZLR 84 (S); S
v Nkomo
SC52-06.
In
order to enable a proper evaluation of the above-mentioned factors it
is essential that evidence be led, primarily by the accused person,
as to what transpired from the date of the charge to the date when
referral of the alleged violation of rights is sought.”
Disposition
From
the authorities cited I am more than satisfied that no case for
permanent stay of prosecution has been made. That is apart from the
fact that the application is improperly before this court.
In
the result it is ordered that the application be and is hereby
dismissed with costs.
Mugiya
& Macharaga Law Chambers,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
