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CCC16-19 - PERFECT NYATHI vs THE STATE

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Procedural Law-viz constitutional referral re section 175 of the Constitution.
Procedural Law-viz rules of evidence re accomplice witness iro section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Theft-viz the doctrine of recent possession.
Indictment-viz prosecutorial autonomy of the Prosecutor General re section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of evidence re self-incrimination evidence of an accomplice witness iro section 268 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz rules of evidence re inadmissible evidence iro self-incriminating  evidence of an accomplice witness.
Procedural Law-viz inadmissible evidence re self incrimination by an accomplice witness iro section 268 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz constitutional referral re Rule 24 of the Constitutional Court Rules.
Procedural Law-viz constitutional referral re section 332 of the Constitution.

Court Management re: Conduct of Trials, Obligations Toward Unrepresented Accused and the Adherence to Fair Trial Rights


Section 69 of the Constitution has four sub-sections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

Indictment or Charge re: Prosecutorial Authority, Private Prosecution & Input of Complainant in Prosecutorial Issues


This is a referral in terms of section 175(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”) from the Magistrate's Court (“the court a quo”) sitting at Gwanda.

After hearing argument from both the applicant and the respondent, the Constitutional Court issued the following order:

“By consent: The matter is struck off the roll with no order as to costs.”

The reasons for the decision now follow.

The applicant testified as an “unconvicted accomplice witness” in the trial of one Dumisani Nyathi (“Nyathi”), who was charged in the court a quo with stock theft in contravention of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was contended that Dumisani Nyathi had stolen fourteen head of cattle belonging to one Jethro Siziba.

All fourteen cattle were recovered from the applicant.

The applicant was arrested on 22 March 2018 on the same charges faced by Dumisani Nyathi and he appeared before the court a quo on 23 March 2018. The applicant alleges that he was released and served with a summons to appear in court on 29 March 2018. He also alleges that he was approached by the prosecutor, who requested him to testify against Dumisani Nyathi as an accomplice witness. He said the prosecutor informed him that he would be given full immunity if he testified truthfully.

At the trial, the prosecutor indicated to the magistrate that the applicant was an accomplice in the commission of the offence charged against Dumisani Nyathi although he was still to be tried. He requested the court to warn the applicant in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”).

The applicant was duly warned by the court a quo.

The applicant alleges that, after testifying for the State, he was told, by the prosecutor, that he no longer needed to attend court on 29 March 2018 as per the summons that he had been served with and that he was a free man.

After a full trial, Dumisani Nyathi was acquitted of the charges against him.

The court a quo found that the applicant's evidence, to the effect that Dumisani Nyathi sold him the cattle, needed corroboration and that Dumisani Nyathi's defence had not been sufficiently disproved by the prosecution. The court also held that there was doubt that the applicant bought the fourteen cattle from the accused person, as there was no documentary proof or witnesses to that effect. More importantly, it was found that “the issue of selling cattle to Perfect Nyathi is very crucial and failure to adequately buttress it vitiates the State case.”

It ought to be noted, at this point, that the trial magistrate did not make a specific pronouncement as regards the applicant's liability to prosecution.

The respondent was dissatisfied with the outcome of the trial of Dumisani Nyathi and sought to appeal against the decision in the High Court. However, the official seized with prosecuting the matter was of the view that the appeal against Dumisani Nyathi's acquittal had no merit and that the State ought to pursue charges against the applicant instead.

On 8 November 2018, the applicant was summoned to appear in the court a quo on the charge of stock theft in contravention of section 114(2)(a) of the Criminal Law Code. It was now the State's case that the applicant, with the assistance of Dumisani Nyathi, had hatched a plan to steal the fourteen head of cattle.

On 4 January 2019, the applicant made an application to the court a quo for referral of the matter to the Constitutional Court. The basis of the application was that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, would be infringed if the State was allowed to use him as an accomplice witness and thereafter turn against him and use the same evidence to secure a conviction against him.

It was also contended that the trial magistrate's failure to endorse the applicant's discharge on the record violated his right to a fair trial.

The respondent opposed the application on the basis that it was frivolous and vexatious.

It contended that the magistrate did not endorse on the record that the applicant be discharged from all liability to prosecution for the offence of theft of fourteen head of cattle because he was not satisfied that the applicant had fully answered all lawful questions put to him. The contention was that the applicant had not given evidence which tended to incriminate himself.

After hearing both parties, the magistrate said:

“The court also noted the fact that section 267(2) of the Criminal Procedure and Evidence Act is not clear on whether if immunity is not granted, should the same be endorsed on the record or not. Also, the court considered that there is nowhere in the Rules where it is stated that non-conviction in a matter where an accomplice witness gave evidence means that he/she did not answer fully to the satisfaction of the court and that immunity should be denied. The onus is, after all, on the State/prosecution to prove its case beyond a reasonable doubt and not on the accomplice witness to make sure that his/her testimony secures a conviction.”

It was also the court a quo's finding that the delay by the respondent in prosecuting the applicant was caused by the fact that the prosecutor believed that the applicant deserved immunity from prosecution.

The court a quo said that it was only after the failed attempt to appeal against Dumisani Nyathi's acquittal, and further pressure from the complainant, that the prosecution against the applicant was mounted.

The court a quo decided that the following question be referred to the Constitutional Court for determination:

“Whether the applicant's right to a fair hearing, as provided for in terms of section 169 (sic) of the Constitution, has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after using him as an un-convicted accomplice witness.”

Section 169 of the Constitution is concerned with the jurisdiction of the Supreme Court.

The section containing provisions on the right to a fair hearing is section 69.

Section 69 of the Constitution has four sub-sections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

The learned magistrate thought that a decision by the prosecutor to prosecute the applicant on charges in respect of which he had given evidence as an accomplice witness must, without more, give rise to a constitutional question on the alleged violation of the right of the applicant to a fair hearing of the charge he is to face.

The basis of the reasoning by the learned magistrate is not clear when regard is had to the fact that the decision to prosecute the applicant was influenced by the conduct of the trial court in terms of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Where a trial court or a magistrate has not entered on the record of the proceedings the discharge of an accomplice witness from all liability to prosecution for the offence concerned in accordance with the requirements of section 267(2) of the Criminal Procedure and Evidence Act, the reasonable inference is that the trial court was not satisfied that the person answered fully all such lawful questions put to him or her as an accomplice witness. In the circumstances, the decision to prosecute the person for the offence concerned cannot be said to give rise to the constitutional question of violation of the person's right to a fair hearing of the charge.

Section 268 of the Criminal Procedure and Evidence Act protects such an accomplice by prohibiting the adduction of evidence against him or her in a prosecution for an offence in respect of which he or she gave evidence on behalf of the prosecution incriminating himself or herself at any trial in respect of the offence for which he or she is subsequently prosecuted.

The evidence is inadmissible against him or her at the trial.

Section 268 of the Criminal Procedure and Evidence Act is sufficient proof of the fact that mere giving of evidence for the prosecution, at any trial, in respect of an offence is no guarantee of immunity against prosecution for the same offence.

Although the applicant did not file a draft order before the Constitutional Court in terms of Rule 14(3) of the Constitutional Court Rules, 2016 (“the Rules”), the heads of argument filed on his behalf show that he seeks the following relief:

“1….,. An order declaring that his right to a fair hearing has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after he testified as an unconvicted accomplice witness in the case of S v Dumisani Nyathi CRB GNDP 249/18.

2….,. An order of permanent stay of prosecution in the case of S v Perfect Nyathi CRB GNDP 938/18 as the appropriate remedy for the infringement of his right to a fair trial alluded to above.”

The gravamen of the applicant's argument before the Constitutional Court was that the court a quo failed to appreciate the import of section 267 of the Criminal Procedure and Evidence Act and that its omission to make an endorsement regarding the applicant's liability, after he testified, was an irregularity. It was submitted that such irregularity does not take away the applicant's right to immunity from prosecution.

The allegation was also made that the applicant answered all questions to the satisfaction of the court a quo and was consequently deserving of discharge in terms of section 267 of the Criminal Procedure and Evidence Act.

As such, the failure to endorse the record was alleged to be an infringement of the applicant's constitutional right to a fair trial.

It is not clear which trial is referred to.

It is against this background that the applicant prayed for the aforementioned relief.

The respondent's argument was that there is no constitutional issue before the Constitutional Court because the applicant's rights were sufficiently protected by section 268 of the Criminal Procedure and Evidence Act....,.

The facts of the matter raise an issue of grave concern to the Constitutional Court. This concern comes after a proper reading of the record and a careful analysis thereof.

It is common cause that the trial court did not make an endorsement on the record as regards the applicant's liability to prosecution after he had testified for the prosecution as an “un-convicted accomplice witness”. It is also common cause that the respondent expressed the intention to appeal against Dumisani Nyathi's discharge after the trial court had found him not guilty of the offence of stock theft. It was the respondent's case that the trial court ignored all evidence on record which proved beyond a reasonable doubt that Dumisani Nyathi had committed the offence of stock theft.

Owing to the conduct of certain officials representing the respondent, who were apparently in agreement with the findings of the trial court, the respondent did not pursue the appeal against that decision. Instead, the position was taken to channel the respondent's resources towards prosecuting the applicant, who had been found in possession of the stolen beasts.

The Constitutional Court finds the respondent's decision to abandon the appeal against Dumisani Nyathi's discharge unsettling at the very least. It appears that there is evidence on the record which might link Dumisani Nyathi to the said offence.

It is, however, not incumbent upon the Constitutional Court to point out such evidence or to make substantive or authoritative findings regarding the said evidence. Suffice to say that it appears to the Constitutional Court that the respondent, through those who acted on behalf of the Prosecutor-General, may have misdirected itself in electing not to pursue the appeal in these circumstances.

It is not without considerable reservation that the Constitutional Court makes the aforementioned observations.

To err on the side of caution, it must be emphasised that the Constitutional Court's sentiments ought not be taken as a direction to the respondent, but only as mere observations, that came about after a careful analysis of the record.

It is necessary that a copy of this judgment be brought to the attention of the Prosecutor General.

Indictment or Charge re: Constitutional Rights iro Arrest, Detention, Prosecution ito Permanent Stay and Systemic Delays


This is a referral in terms of section 175(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”) from the Magistrate's Court (“the court a quo”) sitting at Gwanda.

After hearing argument from both the applicant and the respondent, the Constitutional Court issued the following order:

“By consent: The matter is struck off the roll with no order as to costs.”

The reasons for the decision now follow.

The applicant testified as an “unconvicted accomplice witness” in the trial of one Dumisani Nyathi (“Nyathi”), who was charged in the court a quo with stock theft in contravention of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was contended that Dumisani Nyathi had stolen fourteen head of cattle belonging to one Jethro Siziba.

All fourteen cattle were recovered from the applicant.

The applicant was arrested on 22 March 2018 on the same charges faced by Dumisani Nyathi and he appeared before the court a quo on 23 March 2018. The applicant alleges that he was released and served with a summons to appear in court on 29 March 2018. He also alleges that he was approached by the prosecutor, who requested him to testify against Dumisani Nyathi as an accomplice witness. He said the prosecutor informed him that he would be given full immunity if he testified truthfully.

At the trial, the prosecutor indicated to the magistrate that the applicant was an accomplice in the commission of the offence charged against Dumisani Nyathi although he was still to be tried. He requested the court to warn the applicant in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”).

The applicant was duly warned by the court a quo.

The applicant alleges that, after testifying for the State, he was told, by the prosecutor, that he no longer needed to attend court on 29 March 2018 as per the summons that he had been served with and that he was a free man.

After a full trial, Dumisani Nyathi was acquitted of the charges against him.

The court a quo found that the applicant's evidence, to the effect that Dumisani Nyathi sold him the cattle, needed corroboration and that Dumisani Nyathi's defence had not been sufficiently disproved by the prosecution. The court also held that there was doubt that the applicant bought the fourteen cattle from the accused person, as there was no documentary proof or witnesses to that effect. More importantly, it was found that “the issue of selling cattle to Perfect Nyathi is very crucial and failure to adequately buttress it vitiates the State case.”

It ought to be noted, at this point, that the trial magistrate did not make a specific pronouncement as regards the applicant's liability to prosecution.

The respondent was dissatisfied with the outcome of the trial of Dumisani Nyathi and sought to appeal against the decision in the High Court. However, the official seized with prosecuting the matter was of the view that the appeal against Dumisani Nyathi's acquittal had no merit and that the State ought to pursue charges against the applicant instead.

On 8 November 2018, the applicant was summoned to appear in the court a quo on the charge of stock theft in contravention of section 114(2)(a) of the Criminal Law Code. It was now the State's case that the applicant, with the assistance of Dumisani Nyathi, had hatched a plan to steal the fourteen head of cattle.

On 4 January 2019, the applicant made an application to the court a quo for referral of the matter to the Constitutional Court. The basis of the application was that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, would be infringed if the State was allowed to use him as an accomplice witness and thereafter turn against him and use the same evidence to secure a conviction against him.

It was also contended that the trial magistrate's failure to endorse the applicant's discharge on the record violated his right to a fair trial.

The respondent opposed the application on the basis that it was frivolous and vexatious.

It contended that the magistrate did not endorse on the record that the applicant be discharged from all liability to prosecution for the offence of theft of fourteen head of cattle because he was not satisfied that the applicant had fully answered all lawful questions put to him. The contention was that the applicant had not given evidence which tended to incriminate himself.

After hearing both parties, the magistrate said:

“The court also noted the fact that section 267(2) of the Criminal Procedure and Evidence Act is not clear on whether if immunity is not granted, should the same be endorsed on the record or not. Also, the court considered that there is nowhere in the Rules where it is stated that non-conviction in a matter where an accomplice witness gave evidence means that he/she did not answer fully to the satisfaction of the court and that immunity should be denied. The onus is, after all, on the State/prosecution to prove its case beyond a reasonable doubt and not on the accomplice witness to make sure that his/her testimony secures a conviction.”

It was also the court a quo's finding that the delay by the respondent in prosecuting the applicant was caused by the fact that the prosecutor believed that the applicant deserved immunity from prosecution.

The court a quo said that it was only after the failed attempt to appeal against Dumisani Nyathi's acquittal, and further pressure from the complainant, that the prosecution against the applicant was mounted.

The court a quo decided that the following question be referred to the Constitutional Court for determination:

“Whether the applicant's right to a fair hearing, as provided for in terms of section 169 (sic) of the Constitution, has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after using him as an un-convicted accomplice witness.”

Section 169 of the Constitution is concerned with the jurisdiction of the Supreme Court.

The section containing provisions on the right to a fair hearing is section 69.

Section 69 of the Constitution has four sub-sections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

The learned magistrate thought that a decision by the prosecutor to prosecute the applicant on charges in respect of which he had given evidence as an accomplice witness must, without more, give rise to a constitutional question on the alleged violation of the right of the applicant to a fair hearing of the charge he is to face.

The basis of the reasoning by the learned magistrate is not clear when regard is had to the fact that the decision to prosecute the applicant was influenced by the conduct of the trial court in terms of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Where a trial court or a magistrate has not entered on the record of the proceedings the discharge of an accomplice witness from all liability to prosecution for the offence concerned in accordance with the requirements of section 267(2) of the Criminal Procedure and Evidence Act, the reasonable inference is that the trial court was not satisfied that the person answered fully all such lawful questions put to him or her as an accomplice witness. In the circumstances, the decision to prosecute the person for the offence concerned cannot be said to give rise to the constitutional question of violation of the person's right to a fair hearing of the charge.

Section 268 of the Criminal Procedure and Evidence Act protects such an accomplice by prohibiting the adduction of evidence against him or her in a prosecution for an offence in respect of which he or she gave evidence on behalf of the prosecution incriminating himself or herself at any trial in respect of the offence for which he or she is subsequently prosecuted.

The evidence is inadmissible against him or her at the trial.

Section 268 of the Criminal Procedure and Evidence Act is sufficient proof of the fact that mere giving of evidence for the prosecution, at any trial, in respect of an offence is no guarantee of immunity against prosecution for the same offence.

Although the applicant did not file a draft order before the Constitutional Court in terms of Rule 14(3) of the Constitutional Court Rules, 2016 (“the Rules”), the heads of argument filed on his behalf show that he seeks the following relief:

“1….,. An order declaring that his right to a fair hearing has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after he testified as an unconvicted accomplice witness in the case of S v Dumisani Nyathi CRB GNDP 249/18.

2….,. An order of permanent stay of prosecution in the case of S v Perfect Nyathi CRB GNDP 938/18 as the appropriate remedy for the infringement of his right to a fair trial alluded to above.”

The gravamen of the applicant's argument before the Constitutional Court was that the court a quo failed to appreciate the import of section 267 of the Criminal Procedure and Evidence Act and that its omission to make an endorsement regarding the applicant's liability, after he testified, was an irregularity. It was submitted that such irregularity does not take away the applicant's right to immunity from prosecution.

The allegation was also made that the applicant answered all questions to the satisfaction of the court a quo and was consequently deserving of discharge in terms of section 267 of the Criminal Procedure and Evidence Act.

As such, the failure to endorse the record was alleged to be an infringement of the applicant's constitutional right to a fair trial.

It is not clear which trial is referred to.

It is against this background that the applicant prayed for the aforementioned relief.

The respondent's argument was that there is no constitutional issue before the Constitutional Court because the applicant's rights were sufficiently protected by section 268 of the Criminal Procedure and Evidence Act....,.

The facts of the matter raise an issue of grave concern to the Constitutional Court. This concern comes after a proper reading of the record and a careful analysis thereof.

It is common cause that the trial court did not make an endorsement on the record as regards the applicant's liability to prosecution after he had testified for the prosecution as an “un-convicted accomplice witness”. It is also common cause that the respondent expressed the intention to appeal against Dumisani Nyathi's discharge after the trial court had found him not guilty of the offence of stock theft. It was the respondent's case that the trial court ignored all evidence on record which proved beyond a reasonable doubt that Dumisani Nyathi had committed the offence of stock theft.

Owing to the conduct of certain officials representing the respondent, who were apparently in agreement with the findings of the trial court, the respondent did not pursue the appeal against that decision. Instead, the position was taken to channel the respondent's resources towards prosecuting the applicant, who had been found in possession of the stolen beasts.

The Constitutional Court finds the respondent's decision to abandon the appeal against Dumisani Nyathi's discharge unsettling at the very least. It appears that there is evidence on the record which might link Dumisani Nyathi to the said offence.

It is, however, not incumbent upon the Constitutional Court to point out such evidence or to make substantive or authoritative findings regarding the said evidence. Suffice to say that it appears to the Constitutional Court that the respondent, through those who acted on behalf of the Prosecutor-General, may have misdirected itself in electing not to pursue the appeal in these circumstances.

It is not without considerable reservation that the Constitutional Court makes the aforementioned observations.

To err on the side of caution, it must be emphasised that the Constitutional Court's sentiments ought not be taken as a direction to the respondent, but only as mere observations, that came about after a careful analysis of the record.

It is necessary that a copy of this judgment be brought to the attention of the Prosecutor General.

Jurisdiction re: Approach, Assumption of Jurisdiction, Functus Officio and Judicial Deference


This is a referral in terms of section 175(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”) from the Magistrate's Court (“the court a quo”) sitting at Gwanda.

After hearing argument from both the applicant and the respondent, the Constitutional Court issued the following order:

“By consent: The matter is struck off the roll with no order as to costs.”

The reasons for the decision now follow.

The applicant testified as an “unconvicted accomplice witness” in the trial of one Dumisani Nyathi (“Nyathi”), who was charged in the court a quo with stock theft in contravention of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was contended that Dumisani Nyathi had stolen fourteen head of cattle belonging to one Jethro Siziba.

All fourteen cattle were recovered from the applicant.

The applicant was arrested on 22 March 2018 on the same charges faced by Dumisani Nyathi and he appeared before the court a quo on 23 March 2018. The applicant alleges that he was released and served with a summons to appear in court on 29 March 2018. He also alleges that he was approached by the prosecutor, who requested him to testify against Dumisani Nyathi as an accomplice witness. He said the prosecutor informed him that he would be given full immunity if he testified truthfully.

At the trial, the prosecutor indicated to the magistrate that the applicant was an accomplice in the commission of the offence charged against Dumisani Nyathi although he was still to be tried. He requested the court to warn the applicant in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”).

The applicant was duly warned by the court a quo.

The applicant alleges that, after testifying for the State, he was told, by the prosecutor, that he no longer needed to attend court on 29 March 2018 as per the summons that he had been served with and that he was a free man.

After a full trial, Dumisani Nyathi was acquitted of the charges against him.

The court a quo found that the applicant's evidence, to the effect that Dumisani Nyathi sold him the cattle, needed corroboration and that Dumisani Nyathi's defence had not been sufficiently disproved by the prosecution. The court also held that there was doubt that the applicant bought the fourteen cattle from the accused person, as there was no documentary proof or witnesses to that effect. More importantly, it was found that “the issue of selling cattle to Perfect Nyathi is very crucial and failure to adequately buttress it vitiates the State case.”

It ought to be noted, at this point, that the trial magistrate did not make a specific pronouncement as regards the applicant's liability to prosecution.

The respondent was dissatisfied with the outcome of the trial of Dumisani Nyathi and sought to appeal against the decision in the High Court. However, the official seized with prosecuting the matter was of the view that the appeal against Dumisani Nyathi's acquittal had no merit and that the State ought to pursue charges against the applicant instead.

On 8 November 2018, the applicant was summoned to appear in the court a quo on the charge of stock theft in contravention of section 114(2)(a) of the Criminal Law Code. It was now the State's case that the applicant, with the assistance of Dumisani Nyathi, had hatched a plan to steal the fourteen head of cattle.

On 4 January 2019, the applicant made an application to the court a quo for referral of the matter to the Constitutional Court. The basis of the application was that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, would be infringed if the State was allowed to use him as an accomplice witness and thereafter turn against him and use the same evidence to secure a conviction against him.

It was also contended that the trial magistrate's failure to endorse the applicant's discharge on the record violated his right to a fair trial.

The respondent opposed the application on the basis that it was frivolous and vexatious.

It contended that the magistrate did not endorse on the record that the applicant be discharged from all liability to prosecution for the offence of theft of fourteen head of cattle because he was not satisfied that the applicant had fully answered all lawful questions put to him. The contention was that the applicant had not given evidence which tended to incriminate himself.

After hearing both parties, the magistrate said:

“The court also noted the fact that section 267(2) of the Criminal Procedure and Evidence Act is not clear on whether if immunity is not granted, should the same be endorsed on the record or not. Also, the court considered that there is nowhere in the Rules where it is stated that non-conviction in a matter where an accomplice witness gave evidence means that he/she did not answer fully to the satisfaction of the court and that immunity should be denied. The onus is, after all, on the State/prosecution to prove its case beyond a reasonable doubt and not on the accomplice witness to make sure that his/her testimony secures a conviction.”

It was also the court a quo's finding that the delay by the respondent in prosecuting the applicant was caused by the fact that the prosecutor believed that the applicant deserved immunity from prosecution.

The court a quo said that it was only after the failed attempt to appeal against Dumisani Nyathi's acquittal, and further pressure from the complainant, that the prosecution against the applicant was mounted.

The court a quo decided that the following question be referred to the Constitutional Court for determination:

“Whether the applicant's right to a fair hearing, as provided for in terms of section 169 (sic) of the Constitution, has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after using him as an un-convicted accomplice witness.”

Section 169 of the Constitution is concerned with the jurisdiction of the Supreme Court.

The section containing provisions on the right to a fair hearing is section 69.

Section 69 of the Constitution has four sub-sections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

The learned magistrate thought that a decision by the prosecutor to prosecute the applicant on charges in respect of which he had given evidence as an accomplice witness must, without more, give rise to a constitutional question on the alleged violation of the right of the applicant to a fair hearing of the charge he is to face.

The basis of the reasoning by the learned magistrate is not clear when regard is had to the fact that the decision to prosecute the applicant was influenced by the conduct of the trial court in terms of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Where a trial court or a magistrate has not entered on the record of the proceedings the discharge of an accomplice witness from all liability to prosecution for the offence concerned in accordance with the requirements of section 267(2) of the Criminal Procedure and Evidence Act, the reasonable inference is that the trial court was not satisfied that the person answered fully all such lawful questions put to him or her as an accomplice witness. In the circumstances, the decision to prosecute the person for the offence concerned cannot be said to give rise to the constitutional question of violation of the person's right to a fair hearing of the charge.

Section 268 of the Criminal Procedure and Evidence Act protects such an accomplice by prohibiting the adduction of evidence against him or her in a prosecution for an offence in respect of which he or she gave evidence on behalf of the prosecution incriminating himself or herself at any trial in respect of the offence for which he or she is subsequently prosecuted.

The evidence is inadmissible against him or her at the trial.

Section 268 of the Criminal Procedure and Evidence Act is sufficient proof of the fact that mere giving of evidence for the prosecution, at any trial, in respect of an offence is no guarantee of immunity against prosecution for the same offence.

Although the applicant did not file a draft order before the Constitutional Court in terms of Rule 14(3) of the Constitutional Court Rules, 2016 (“the Rules”), the heads of argument filed on his behalf show that he seeks the following relief:

“1….,. An order declaring that his right to a fair hearing has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after he testified as an unconvicted accomplice witness in the case of S v Dumisani Nyathi CRB GNDP 249/18.

2….,. An order of permanent stay of prosecution in the case of S v Perfect Nyathi CRB GNDP 938/18 as the appropriate remedy for the infringement of his right to a fair trial alluded to above.”

The gravamen of the applicant's argument before the Constitutional Court was that the court a quo failed to appreciate the import of section 267 of the Criminal Procedure and Evidence Act and that its omission to make an endorsement regarding the applicant's liability, after he testified, was an irregularity. It was submitted that such irregularity does not take away the applicant's right to immunity from prosecution.

The allegation was also made that the applicant answered all questions to the satisfaction of the court a quo and was consequently deserving of discharge in terms of section 267 of the Criminal Procedure and Evidence Act.

As such, the failure to endorse the record was alleged to be an infringement of the applicant's constitutional right to a fair trial.

It is not clear which trial is referred to.

It is against this background that the applicant prayed for the aforementioned relief.

The respondent's argument was that there is no constitutional issue before the Constitutional Court because the applicant's rights were sufficiently protected by section 268 of the Criminal Procedure and Evidence Act....,.

The facts of the matter raise an issue of grave concern to the Constitutional Court. This concern comes after a proper reading of the record and a careful analysis thereof.

It is common cause that the trial court did not make an endorsement on the record as regards the applicant's liability to prosecution after he had testified for the prosecution as an “un-convicted accomplice witness”. It is also common cause that the respondent expressed the intention to appeal against Dumisani Nyathi's discharge after the trial court had found him not guilty of the offence of stock theft. It was the respondent's case that the trial court ignored all evidence on record which proved beyond a reasonable doubt that Dumisani Nyathi had committed the offence of stock theft.

Owing to the conduct of certain officials representing the respondent, who were apparently in agreement with the findings of the trial court, the respondent did not pursue the appeal against that decision. Instead, the position was taken to channel the respondent's resources towards prosecuting the applicant, who had been found in possession of the stolen beasts.

The Constitutional Court finds the respondent's decision to abandon the appeal against Dumisani Nyathi's discharge unsettling at the very least. It appears that there is evidence on the record which might link Dumisani Nyathi to the said offence.

It is, however, not incumbent upon the Constitutional Court to point out such evidence or to make substantive or authoritative findings regarding the said evidence. Suffice to say that it appears to the Constitutional Court that the respondent, through those who acted on behalf of the Prosecutor-General, may have misdirected itself in electing not to pursue the appeal in these circumstances.

It is not without considerable reservation that the Constitutional Court makes the aforementioned observations.

To err on the side of caution, it must be emphasised that the Constitutional Court's sentiments ought not be taken as a direction to the respondent, but only as mere observations, that came about after a careful analysis of the record.

It is necessary that a copy of this judgment be brought to the attention of the Prosecutor General.

Accomplice Witness, Suspect Witness, Executive Communication Between Co-Conspirators & Immunity from Prosecution


This is a referral in terms of section 175(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”) from the Magistrate's Court (“the court a quo”) sitting at Gwanda.

After hearing argument from both the applicant and the respondent, the Constitutional Court issued the following order:

“By consent: The matter is struck off the roll with no order as to costs.”

The reasons for the decision now follow.

The applicant testified as an “unconvicted accomplice witness” in the trial of one Dumisani Nyathi (“Nyathi”), who was charged in the court a quo with stock theft in contravention of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was contended that Dumisani Nyathi had stolen fourteen head of cattle belonging to one Jethro Siziba.

All fourteen cattle were recovered from the applicant.

The applicant was arrested on 22 March 2018 on the same charges faced by Dumisani Nyathi and he appeared before the court a quo on 23 March 2018. The applicant alleges that he was released and served with a summons to appear in court on 29 March 2018. He also alleges that he was approached by the prosecutor, who requested him to testify against Dumisani Nyathi as an accomplice witness. He said the prosecutor informed him that he would be given full immunity if he testified truthfully.

At the trial, the prosecutor indicated to the magistrate that the applicant was an accomplice in the commission of the offence charged against Dumisani Nyathi although he was still to be tried. He requested the court to warn the applicant in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”).

The applicant was duly warned by the court a quo.

The applicant alleges that, after testifying for the State, he was told, by the prosecutor, that he no longer needed to attend court on 29 March 2018 as per the summons that he had been served with and that he was a free man.

After a full trial, Dumisani Nyathi was acquitted of the charges against him.

The court a quo found that the applicant's evidence, to the effect that Dumisani Nyathi sold him the cattle, needed corroboration and that Dumisani Nyathi's defence had not been sufficiently disproved by the prosecution. The court also held that there was doubt that the applicant bought the fourteen cattle from the accused person, as there was no documentary proof or witnesses to that effect. More importantly, it was found that “the issue of selling cattle to Perfect Nyathi is very crucial and failure to adequately buttress it vitiates the State case.”

It ought to be noted, at this point, that the trial magistrate did not make a specific pronouncement as regards the applicant's liability to prosecution.

The respondent was dissatisfied with the outcome of the trial of Dumisani Nyathi and sought to appeal against the decision in the High Court. However, the official seized with prosecuting the matter was of the view that the appeal against Dumisani Nyathi's acquittal had no merit and that the State ought to pursue charges against the applicant instead.

On 8 November 2018, the applicant was summoned to appear in the court a quo on the charge of stock theft in contravention of section 114(2)(a) of the Criminal Law Code. It was now the State's case that the applicant, with the assistance of Dumisani Nyathi, had hatched a plan to steal the fourteen head of cattle.

On 4 January 2019, the applicant made an application to the court a quo for referral of the matter to the Constitutional Court. The basis of the application was that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, would be infringed if the State was allowed to use him as an accomplice witness and thereafter turn against him and use the same evidence to secure a conviction against him.

It was also contended that the trial magistrate's failure to endorse the applicant's discharge on the record violated his right to a fair trial.

The respondent opposed the application on the basis that it was frivolous and vexatious.

It contended that the magistrate did not endorse on the record that the applicant be discharged from all liability to prosecution for the offence of theft of fourteen head of cattle because he was not satisfied that the applicant had fully answered all lawful questions put to him. The contention was that the applicant had not given evidence which tended to incriminate himself.

After hearing both parties, the magistrate said:

“The court also noted the fact that section 267(2) of the Criminal Procedure and Evidence Act is not clear on whether if immunity is not granted, should the same be endorsed on the record or not. Also, the court considered that there is nowhere in the Rules where it is stated that non-conviction in a matter where an accomplice witness gave evidence means that he/she did not answer fully to the satisfaction of the court and that immunity should be denied. The onus is, after all, on the State/prosecution to prove its case beyond a reasonable doubt and not on the accomplice witness to make sure that his/her testimony secures a conviction.”

It was also the court a quo's finding that the delay by the respondent in prosecuting the applicant was caused by the fact that the prosecutor believed that the applicant deserved immunity from prosecution.

The court a quo said that it was only after the failed attempt to appeal against Dumisani Nyathi's acquittal, and further pressure from the complainant, that the prosecution against the applicant was mounted.

The court a quo decided that the following question be referred to the Constitutional Court for determination:

“Whether the applicant's right to a fair hearing, as provided for in terms of section 169 (sic) of the Constitution, has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after using him as an un-convicted accomplice witness.”

Section 169 of the Constitution is concerned with the jurisdiction of the Supreme Court.

The section containing provisions on the right to a fair hearing is section 69.

Section 69 of the Constitution has four sub-sections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

The learned magistrate thought that a decision by the prosecutor to prosecute the applicant on charges in respect of which he had given evidence as an accomplice witness must, without more, give rise to a constitutional question on the alleged violation of the right of the applicant to a fair hearing of the charge he is to face.

The basis of the reasoning by the learned magistrate is not clear when regard is had to the fact that the decision to prosecute the applicant was influenced by the conduct of the trial court in terms of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Where a trial court or a magistrate has not entered on the record of the proceedings the discharge of an accomplice witness from all liability to prosecution for the offence concerned in accordance with the requirements of section 267(2) of the Criminal Procedure and Evidence Act, the reasonable inference is that the trial court was not satisfied that the person answered fully all such lawful questions put to him or her as an accomplice witness. In the circumstances, the decision to prosecute the person for the offence concerned cannot be said to give rise to the constitutional question of violation of the person's right to a fair hearing of the charge.

Section 268 of the Criminal Procedure and Evidence Act protects such an accomplice by prohibiting the adduction of evidence against him or her in a prosecution for an offence in respect of which he or she gave evidence on behalf of the prosecution incriminating himself or herself at any trial in respect of the offence for which he or she is subsequently prosecuted.

The evidence is inadmissible against him or her at the trial.

Section 268 of the Criminal Procedure and Evidence Act is sufficient proof of the fact that mere giving of evidence for the prosecution, at any trial, in respect of an offence is no guarantee of immunity against prosecution for the same offence.

Although the applicant did not file a draft order before the Constitutional Court in terms of Rule 14(3) of the Constitutional Court Rules, 2016 (“the Rules”), the heads of argument filed on his behalf show that he seeks the following relief:

“1….,. An order declaring that his right to a fair hearing has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after he testified as an unconvicted accomplice witness in the case of S v Dumisani Nyathi CRB GNDP 249/18.

2….,. An order of permanent stay of prosecution in the case of S v Perfect Nyathi CRB GNDP 938/18 as the appropriate remedy for the infringement of his right to a fair trial alluded to above.”

The gravamen of the applicant's argument before the Constitutional Court was that the court a quo failed to appreciate the import of section 267 of the Criminal Procedure and Evidence Act and that its omission to make an endorsement regarding the applicant's liability, after he testified, was an irregularity. It was submitted that such irregularity does not take away the applicant's right to immunity from prosecution.

The allegation was also made that the applicant answered all questions to the satisfaction of the court a quo and was consequently deserving of discharge in terms of section 267 of the Criminal Procedure and Evidence Act.

As such, the failure to endorse the record was alleged to be an infringement of the applicant's constitutional right to a fair trial.

It is not clear which trial is referred to.

It is against this background that the applicant prayed for the aforementioned relief.

The respondent's argument was that there is no constitutional issue before the Constitutional Court because the applicant's rights were sufficiently protected by section 268 of the Criminal Procedure and Evidence Act....,.

In casu, the court a quo said the following in referring the matter to the Constitutional Court:

“It is the court's finding that there is nothing frivolous or vexing about the applicant seeking to get an answer as to what happened to the handicap that the respondent initially felt encumbered it before proceeding against it (sic).

Also, can a fair trial be held when there are some issues left un-clarified, like the issue of what interpretation is to be given to the non-endorsement of whether immunity was granted or not and would it be fair for such to be left unclarified and open to any interpretation by any party, which will obviously interpret it to serve its own purpose and support its case or argument?

The court cannot shrug away a possible violation of one of the fundamental rights enshrined in the Constitution based on assumptions that the trial court in S v Dumisani Nyathi meant this or that, and, if such assumptions raise questions which neither of the parties can fully answer with confidence, then, it is this court's view that it is proper for the matter to be referred on the following question…,.”...,.

The court a quo sought to interpret the provisions of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] to mean that a trial court which has heard evidence of an accomplice witness called by the prosecution ought to enter on the record of proceedings the fact that the person did not answer fully to its satisfaction all such lawful questions put to him or her.

According to the court a quo, a decision to prosecute the accomplice for the offence in respect of which he or she had given evidence for the prosecution, where the trial court has not entered on the record of proceedings the fact that it is not satisfied that the accomplice had fully answered all lawful questions put to him or her in respect of the offence, would constitute a violation of the right of the accomplice to a fair hearing.

Needless to say, the interpretation sought to be placed on the provisions of section 267(2) of the Criminal Procedure and Evidence Act, by the court a quo, is not borne out by the clear and unambiguous language of the provision....,.

The facts of the matter raise an issue of grave concern to the Constitutional Court. This concern comes after a proper reading of the record and a careful analysis thereof.

It is common cause that the trial court did not make an endorsement on the record as regards the applicant's liability to prosecution after he had testified for the prosecution as an “un-convicted accomplice witness”. It is also common cause that the respondent expressed the intention to appeal against Dumisani Nyathi's discharge after the trial court had found him not guilty of the offence of stock theft. It was the respondent's case that the trial court ignored all evidence on record which proved beyond a reasonable doubt that Dumisani Nyathi had committed the offence of stock theft.

Owing to the conduct of certain officials representing the respondent, who were apparently in agreement with the findings of the trial court, the respondent did not pursue the appeal against that decision. Instead, the position was taken to channel the respondent's resources towards prosecuting the applicant, who had been found in possession of the stolen beasts.

The Constitutional Court finds the respondent's decision to abandon the appeal against Dumisani Nyathi's discharge unsettling at the very least. It appears that there is evidence on the record which might link Dumisani Nyathi to the said offence.

It is, however, not incumbent upon the Constitutional Court to point out such evidence or to make substantive or authoritative findings regarding the said evidence. Suffice to say that it appears to the Constitutional Court that the respondent, through those who acted on behalf of the Prosecutor-General, may have misdirected itself in electing not to pursue the appeal in these circumstances.

It is not without considerable reservation that the Constitutional Court makes the aforementioned observations.

To err on the side of caution, it must be emphasised that the Constitutional Court's sentiments ought not be taken as a direction to the respondent, but only as mere observations, that came about after a careful analysis of the record.

It is necessary that a copy of this judgment be brought to the attention of the Prosecutor General.

Constitutional Application, Referral and Appeal, the Frivolous and Vexatious Test and Confirmation Proceedings


This is a referral in terms of section 175(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”) from the Magistrate's Court (“the court a quo”) sitting at Gwanda.

After hearing argument from both the applicant and the respondent, the Constitutional Court issued the following order:

“By consent: The matter is struck off the roll with no order as to costs.”

The reasons for the decision now follow.

The applicant testified as an “unconvicted accomplice witness” in the trial of one Dumisani Nyathi (“Nyathi”), who was charged in the court a quo with stock theft in contravention of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was contended that Dumisani Nyathi had stolen fourteen head of cattle belonging to one Jethro Siziba.

All fourteen cattle were recovered from the applicant.

The applicant was arrested on 22 March 2018 on the same charges faced by Dumisani Nyathi and he appeared before the court a quo on 23 March 2018. The applicant alleges that he was released and served with a summons to appear in court on 29 March 2018. He also alleges that he was approached by the prosecutor, who requested him to testify against Dumisani Nyathi as an accomplice witness. He said the prosecutor informed him that he would be given full immunity if he testified truthfully.

At the trial, the prosecutor indicated to the magistrate that the applicant was an accomplice in the commission of the offence charged against Dumisani Nyathi although he was still to be tried. He requested the court to warn the applicant in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”).

The applicant was duly warned by the court a quo.

The applicant alleges that, after testifying for the State, he was told, by the prosecutor, that he no longer needed to attend court on 29 March 2018 as per the summons that he had been served with and that he was a free man.

After a full trial, Dumisani Nyathi was acquitted of the charges against him.

The court a quo found that the applicant's evidence, to the effect that Dumisani Nyathi sold him the cattle, needed corroboration and that Dumisani Nyathi's defence had not been sufficiently disproved by the prosecution. The court also held that there was doubt that the applicant bought the fourteen cattle from the accused person, as there was no documentary proof or witnesses to that effect. More importantly, it was found that “the issue of selling cattle to Perfect Nyathi is very crucial and failure to adequately buttress it vitiates the State case.”

It ought to be noted, at this point, that the trial magistrate did not make a specific pronouncement as regards the applicant's liability to prosecution.

The respondent was dissatisfied with the outcome of the trial of Dumisani Nyathi and sought to appeal against the decision in the High Court. However, the official seized with prosecuting the matter was of the view that the appeal against Dumisani Nyathi's acquittal had no merit and that the State ought to pursue charges against the applicant instead.

On 8 November 2018, the applicant was summoned to appear in the court a quo on the charge of stock theft in contravention of section 114(2)(a) of the Criminal Law Code. It was now the State's case that the applicant, with the assistance of Dumisani Nyathi, had hatched a plan to steal the fourteen head of cattle.

On 4 January 2019, the applicant made an application to the court a quo for referral of the matter to the Constitutional Court. The basis of the application was that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, would be infringed if the State was allowed to use him as an accomplice witness and thereafter turn against him and use the same evidence to secure a conviction against him.

It was also contended that the trial magistrate's failure to endorse the applicant's discharge on the record violated his right to a fair trial.

The respondent opposed the application on the basis that it was frivolous and vexatious.

It contended that the magistrate did not endorse on the record that the applicant be discharged from all liability to prosecution for the offence of theft of fourteen head of cattle because he was not satisfied that the applicant had fully answered all lawful questions put to him. The contention was that the applicant had not given evidence which tended to incriminate himself.

After hearing both parties, the magistrate said:

“The court also noted the fact that section 267(2) of the Criminal Procedure and Evidence Act is not clear on whether if immunity is not granted, should the same be endorsed on the record or not. Also, the court considered that there is nowhere in the Rules where it is stated that non-conviction in a matter where an accomplice witness gave evidence means that he/she did not answer fully to the satisfaction of the court and that immunity should be denied. The onus is, after all, on the State/prosecution to prove its case beyond a reasonable doubt and not on the accomplice witness to make sure that his/her testimony secures a conviction.”

It was also the court a quo's finding that the delay by the respondent in prosecuting the applicant was caused by the fact that the prosecutor believed that the applicant deserved immunity from prosecution.

The court a quo said that it was only after the failed attempt to appeal against Dumisani Nyathi's acquittal, and further pressure from the complainant, that the prosecution against the applicant was mounted.

The court a quo decided that the following question be referred to the Constitutional Court for determination:

“Whether the applicant's right to a fair hearing, as provided for in terms of section 169 (sic) of the Constitution, has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after using him as an un-convicted accomplice witness.”

Section 169 of the Constitution is concerned with the jurisdiction of the Supreme Court.

The section containing provisions on the right to a fair hearing is section 69.

Section 69 of the Constitution has four sub-sections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

The learned magistrate thought that a decision by the prosecutor to prosecute the applicant on charges in respect of which he had given evidence as an accomplice witness must, without more, give rise to a constitutional question on the alleged violation of the right of the applicant to a fair hearing of the charge he is to face.

The basis of the reasoning by the learned magistrate is not clear when regard is had to the fact that the decision to prosecute the applicant was influenced by the conduct of the trial court in terms of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Where a trial court or a magistrate has not entered on the record of the proceedings the discharge of an accomplice witness from all liability to prosecution for the offence concerned in accordance with the requirements of section 267(2) of the Criminal Procedure and Evidence Act, the reasonable inference is that the trial court was not satisfied that the person answered fully all such lawful questions put to him or her as an accomplice witness. In the circumstances, the decision to prosecute the person for the offence concerned cannot be said to give rise to the constitutional question of violation of the person's right to a fair hearing of the charge.

Section 268 of the Criminal Procedure and Evidence Act protects such an accomplice by prohibiting the adduction of evidence against him or her in a prosecution for an offence in respect of which he or she gave evidence on behalf of the prosecution incriminating himself or herself at any trial in respect of the offence for which he or she is subsequently prosecuted.

The evidence is inadmissible against him or her at the trial.

Section 268 of the Criminal Procedure and Evidence Act is sufficient proof of the fact that mere giving of evidence for the prosecution, at any trial, in respect of an offence is no guarantee of immunity against prosecution for the same offence.

Although the applicant did not file a draft order before the Constitutional Court in terms of Rule 14(3) of the Constitutional Court Rules, 2016 (“the Rules”), the heads of argument filed on his behalf show that he seeks the following relief:

“1….,. An order declaring that his right to a fair hearing has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after he testified as an unconvicted accomplice witness in the case of S v Dumisani Nyathi CRB GNDP 249/18.

2….,. An order of permanent stay of prosecution in the case of S v Perfect Nyathi CRB GNDP 938/18 as the appropriate remedy for the infringement of his right to a fair trial alluded to above.”

The gravamen of the applicant's argument before the Constitutional Court was that the court a quo failed to appreciate the import of section 267 of the Criminal Procedure and Evidence Act and that its omission to make an endorsement regarding the applicant's liability, after he testified, was an irregularity. It was submitted that such irregularity does not take away the applicant's right to immunity from prosecution.

The allegation was also made that the applicant answered all questions to the satisfaction of the court a quo and was consequently deserving of discharge in terms of section 267 of the Criminal Procedure and Evidence Act.

As such, the failure to endorse the record was alleged to be an infringement of the applicant's constitutional right to a fair trial.

It is not clear which trial is referred to.

It is against this background that the applicant prayed for the aforementioned relief.

The respondent's argument was that there is no constitutional issue before the Constitutional Court because the applicant's rights were sufficiently protected by section 268 of the Criminal Procedure and Evidence Act.

The first issue for determination is whether or not the matter is properly before the Court.

The matter can be disposed of on this ground if the Court finds that the referral is not properly before it.

Section 175(4) of the Constitution provides as follows:

“(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.”…,.

Rule 24 of the Constitutional Court Rules is to the effect that:

“(2) Where the person presiding over a court of lesser jurisdiction is requested by a party to the proceedings to refer the matter to the Court and he or she is satisfied that the request is not frivolous or vexatious, he or she shall refer the matter to the Court.”…,.

A constitutional matter is defined, in section 332 of the Constitution, to mean a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

It must arise or be raised in the proceedings in the subordinate court.

The presiding person may, if he or she is of the view that the determination of the constitutional issue by the Constitutional Court is necessary for the purposes of the proceedings before him or her, mero motu refer the matter to the Constitutional Court. If the matter is raised by any party to the proceedings, there must be a request by that party, or any other party, that the matter be referred to the Constitutional Court for determination. If the presiding person is of the view that the determination of the constitutional matter by the Constitutional Court is necessary for the disposition of the controversy between the parties and that the request for a referral is not frivolous or vexatious, he or she is obliged to refer the matter to the Constitutional Court for determination. If the presiding person is of the opinion that the request for a referral is frivolous or vexatious, he or she shall refuse the request.

Regarding the meaning and content of the phrase “frivolous and vexatious”, the Court, in Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S) stated the following…,:

“In S v Cooper & Ors 1977 (3) SA 475 (T) at 476D, BOSHOFF J said that the word 'frivolous', in its ordinary and natural meaning, connotes an action or legal proceeding characterised by lack of seriousness as in the case of one which is manifestly insufficient. The raising of the question for referral to the Supreme Court under section 24(2) of the Constitution would have to be found, on the facts, to have been obviously lacking in seriousness, unsustainable, manifestly groundless or utterly hopeless and without foundation in the facts on which it was purportedly based.

In Martin v A-G & Anor 1993 (1) ZLR 153 (S) it was held that the ordinary and natural meaning of the words 'frivolous or vexatious', in the context of section 24(2) of the Constitution, had to be borne in mind and applied to the facts by the person presiding in the lower court to form the requisite opinion. GUBBAY CJ, at 157, said:

'In the context of section 24(2), the word 'frivolous' connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word 'vexatious', in contra–distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed; it is not raised bona fide and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless.

See Young v Holloway & Anor [1895] P 87 at 90-91; Dyson v Attorney General [1911] I KB 410 (CA) at 418; Norman v Mathews (1916) 85 LJ KB 857 at 859; S v Cooper & Ors 1977 (3) SA 475 (T) at 476DG; Fisheries Development Corporation of SA Ltd v Jorgensen & Anor 1979 (3) SA 1331 (W) at 1339E-F.'”

As said in Nyagura v Ncube N.O. and Ors CC07-19…, there must be a moment in the procedure set out in section 175(4) of the Constitution when the presiding person must address his or her mind to factors that answer a number of questions, including whether the request to refer the matter to the Constitutional Court is frivolous or vexatious, and whether the determination by the Constitutional Court is necessary for the purpose of the proceedings before him or her.

Therefore, the position of the law is that it is a request for referral that ought to be considered frivolous or vexatious and not the constitutional question itself.

In Nyagura v Ncube N.O. and Ors CC07-19, the Constitutional Court held as follows…,:

“It is not compliance with the requirements of the procedure of referral of a constitutional matter to the Court, prescribed under section 175(4) of the Constitution, to say the constitutional question was raised and the presiding person declined to refer it to the Court. The reason is that it is the request to refer a constitutional question to the Court which must have been found to be frivolous or vexatious. It is not the constitutional matter itself that has to be found to be frivolous or vexatious.”…,.

In casu, the court a quo said the following in referring the matter to the Constitutional Court:

“It is the court's finding that there is nothing frivolous or vexing about the applicant seeking to get an answer as to what happened to the handicap that the respondent initially felt encumbered it before proceeding against it (sic).

Also, can a fair trial be held when there are some issues left un-clarified, like the issue of what interpretation is to be given to the non-endorsement of whether immunity was granted or not and would it be fair for such to be left unclarified and open to any interpretation by any party, which will obviously interpret it to serve its own purpose and support its case or argument?

The court cannot shrug away a possible violation of one of the fundamental rights enshrined in the Constitution based on assumptions that the trial court in S v Dumisani Nyathi meant this or that, and, if such assumptions raise questions which neither of the parties can fully answer with confidence, then, it is this court's view that it is proper for the matter to be referred on the following question…,.”

It is therefore apparent that the court a quo did not make a finding as to whether the applicant's request for a referral was frivolous or vexatious. Instead, it appears that the court a quo found that the constitutional question itself was not frivolous and vexatious and that it deserved the attention of the Constitutional Court.

The court a quo sought to interpret the provisions of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] to mean that a trial court which has heard evidence of an accomplice witness called by the prosecution ought to enter on the record of proceedings the fact that the person did not answer fully to its satisfaction all such lawful questions put to him or her.

According to the court a quo, a decision to prosecute the accomplice for the offence in respect of which he or she had given evidence for the prosecution, where the trial court has not entered on the record of proceedings the fact that it is not satisfied that the accomplice had fully answered all lawful questions put to him or her in respect of the offence, would constitute a violation of the right of the accomplice to a fair hearing.

Needless to say, the interpretation sought to be placed on the provisions of section 267(2) of the Criminal Procedure and Evidence Act, by the court a quo, is not borne out by the clear and unambiguous language of the provision.

A determination of whether or not the request is frivolous or vexatious is not a finding to be undertaken by the Constitutional Court on behalf of the referring court. It is an exercise which must be carried out by the presiding person during the course of proceedings in the lower court. The presiding person ought to apply his or her mind to the request and make an assessment, based on the evidence presented, whether or not the request is frivolous or vexatious.

The standard by which the facts on which the raising of a question is based must be measured is put so high so as to enable the person presiding in the lower court to stop legal proceedings that should not have been launched at all; Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S).

The purpose of the exercise of the jurisdiction of a subordinate court, under section 175(4) of the Constitution, is to protect the process of the Constitutional Court against frivolous or vexatious litigation.

The importance of guarding the Constitutional Court against the abuse of its process, through the adjudication of matters that ought not to have passed the frivolity or vexatiousness test, cannot be over-emphasised. The Constitutional Court must protect its integrity and ensure that it only adjudicates that which it is constitutionally mandated to hear and determine. Consequently, where the procedures of the Constitutional Court are used to achieve purposes for which they are not intended that would amount to an abuse of process.

It is in this context that presiding persons ought to exercise their minds when seized with a request for a referral to the Constitutional Court.

The court a quo failed to do so.

The facts of the matter raise an issue of grave concern to the Constitutional Court. This concern comes after a proper reading of the record and a careful analysis thereof.

It is common cause that the trial court did not make an endorsement on the record as regards the applicant's liability to prosecution after he had testified for the prosecution as an “un-convicted accomplice witness”. It is also common cause that the respondent expressed the intention to appeal against Dumisani Nyathi's discharge after the trial court had found him not guilty of the offence of stock theft. It was the respondent's case that the trial court ignored all evidence on record which proved beyond a reasonable doubt that Dumisani Nyathi had committed the offence of stock theft.

Owing to the conduct of certain officials representing the respondent, who were apparently in agreement with the findings of the trial court, the respondent did not pursue the appeal against that decision. Instead, the position was taken to channel the respondent's resources towards prosecuting the applicant, who had been found in possession of the stolen beasts.

The Constitutional Court finds the respondent's decision to abandon the appeal against Dumisani Nyathi's discharge unsettling at the very least. It appears that there is evidence on the record which might link Dumisani Nyathi to the said offence.

It is, however, not incumbent upon the Constitutional Court to point out such evidence or to make substantive or authoritative findings regarding the said evidence. Suffice to say that it appears to the Constitutional Court that the respondent, through those who acted on behalf of the Prosecutor-General, may have misdirected itself in electing not to pursue the appeal in these circumstances.

It is not without considerable reservation that the Constitutional Court makes the aforementioned observations.

To err on the side of caution, it must be emphasised that the Constitutional Court's sentiments ought not be taken as a direction to the respondent, but only as mere observations, that came about after a careful analysis of the record.

It is necessary that a copy of this judgment be brought to the attention of the Prosecutor General.

MALABA CJ: This is a referral in terms of section 175(4) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”) from the Magistrate's Court (“the court a quo”) sitting at Gwanda.

After hearing argument from both the applicant and the respondent, the Court issued the following order:

By consent: The matter is struck off the roll with no order as to costs”.

The reasons for the decision now follow.

The applicant testified as an “unconvicted accomplice witness” in the trial of one Dumisani Nyathi (“Nyathi”), who was charged in the court a quo with stock theft in contravention of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was contended that Nyathi had stolen fourteen head of cattle belonging to one Jethro Siziba.

All fourteen cattle were recovered from the applicant.

The applicant was arrested on 22 March 2018 on the same charges faced by Nyathi and he appeared before the court a quo on 23 March 2018. The applicant alleges that he was released and served with a summons to appear in court on 29 March 2018. He also alleges that he was approached by the prosecutor, who requested him to testify against Nyathi as an accomplice witness. He said the prosecutor informed him that he would be given full immunity if he testified truthfully.

At the trial, the prosecutor indicated to the magistrate that the applicant was an accomplice in the commission of the offence charged against Nyathi although he was still to be tried. He requested the court to warn the applicant in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”).

The applicant was duly warned by the court a quo.

The applicant alleges that, after testifying for the State, he was told by the prosecutor that he no longer needed to attend court on 29 March 2018 as per the summons that he had been served with and that he was a free man.

After a full trial, Nyathi was acquitted of the charges against him. The court a quo found that the applicant's evidence to the effect that Nyathi sold him the cattle needed corroboration and that Nyathi's defence had not been sufficiently disproved by the prosecution. The court also held that there was doubt that the applicant bought the fourteen cattle from the accused person, as there was no documentary proof or witnesses to that effect. More importantly, it was found that “the issue of selling cattle to Perfect Nyathi is very crucial and failure to adequately buttress it vitiates the State case”.

It ought to be noted at this point that the trial magistrate did not make a specific pronouncement as regards the applicant's liability to prosecution.

The respondent was dissatisfied with the outcome of the trial of Nyathi and sought to appeal against the decision in the High Court. However, the official seized with prosecuting the matter was of the view that the appeal against Nyathi's acquittal had no merit and that the State ought to pursue charges against the applicant instead.

On 8 November 2018 the applicant was summoned to appear in the court a quo on the charge of stock theft in contravention of section 114(2)(a) of the Criminal Law Code. It was now the State's case that the applicant, with the assistance of Nyathi, had hatched a plan to steal the fourteen head of cattle.

On 4 January 2019 the applicant made an application to the court a quo for referral of the matter to the Court. The basis of the application was that the applicant's right to a fair trial enshrined in section 69(1) of the Constitution would be infringed if the State was allowed to use him as an accomplice witness and thereafter turn against him and use the same evidence to secure a conviction against him.

It was also contended that the trial magistrate's failure to endorse the applicant's discharge on the record violated his right to a fair trial.

The respondent opposed the application on the basis that it was frivolous and vexatious.

It contended that the magistrate did not endorse on the record that the applicant be discharged from all liability to prosecution for the offence of theft of fourteen head of cattle because he was not satisfied that the applicant had fully answered all lawful questions put to him. The contention was that the applicant had not given evidence which tended to incriminate himself.

After hearing both parties, the magistrate said:

The court also noted the fact that section 267(2) of the Criminal Procedure and Evidence Act is not clear on whether if immunity is not granted, should the same be endorsed on the record or not. Also the court considered that there is nowhere in the rules where it is stated that non conviction in a matter where an accomplice witness gave evidence means that he/she did not answer fully to the satisfaction of the court and that immunity should be denied. The onus is after all on the State/prosecution to prove its case beyond a reasonable doubt and not on the accomplice witness to make sure that his/her testimony secures a conviction.”

It was also the court a quo's finding that the delay by the respondent in prosecuting the applicant was caused by the fact that the prosecutor believed that the applicant deserved immunity from prosecution.

The court a quo said that it was only after the failed attempt to appeal against Nyathi's acquittal and further pressure from the complainant that the prosecution against the applicant was mounted.

The court a quo decided that the following question be referred to the Court for determination:

Whether the applicant's right to a fair hearing as provided for in terms of section 169 (sic) of the Constitution has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after using him as an unconvicted accomplice witness.”

Section 169 of the Constitution is concerned with the jurisdiction of the Supreme Court.

The section containing provisions on the right to a fair hearing is section 69. Section 69 has four subsections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

The learned magistrate thought that a decision by the prosecutor to prosecute the applicant on charges in respect of which he had given evidence as an accomplice witness must, without more, give rise to a constitutional question on the alleged violation of the right of the applicant to a fair hearing of the charge he is to face.

The basis of the reasoning by the learned magistrate is not clear when regard is had to the fact that the decision to prosecute the applicant was influenced by the conduct of the trial court in terms of section 267(2) of the CPEA.

Where a trial court or a magistrate has not entered on the record of the proceedings the discharge of an accomplice witness from all liability to prosecution for the offence concerned in accordance with the requirements of section 267(2) of the CPEA, the reasonable inference is that the trial court was not satisfied that the person answered fully all such lawful questions put to him or her as an accomplice witness. In the circumstances, the decision to prosecute the person for the offence concerned cannot be said to give rise to the constitutional question of violation of the person's right to a fair hearing of the charge.

Section 268 of the CPEA protects such an accomplice by prohibiting the adduction of evidence against him or her in a prosecution for an offence in respect of which he or she gave evidence on behalf of the prosecution incriminating himself or herself at any trial in respect of the offence for which he or she is subsequently prosecuted. The evidence is inadmissible against him or her at the trial.

Section 268 of the CPEA is sufficient proof of the fact that mere giving of evidence for the prosecution at any trial in respect of an offence is no guarantee of immunity against prosecution for the same offence.

Although the applicant did not file a draft order before the Court in terms of Rule 14(3) of the Constitutional Court Rules, 2016 (“the Rules”), the heads of argument filed on his behalf show that he seeks the following relief:

1. … an order declaring that his right to a fair hearing has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after he testified as an unconvicted accomplice witness in the case of S v Dumisani Nyathi CRB GNDP 249/18.

2. … an order of permanent stay of prosecution in the case of S v Perfect Nyathi CRB GNDP 938/18 as the appropriate remedy for the infringement of his right to a fair trial alluded to above.”

The gravamen of the applicant's argument before the Court was that the court a quo failed to appreciate the import of section 267 of the CPEA and that its omission to make an endorsement regarding the applicant's liability after he testified was an irregularity. It was submitted that such irregularity does not take away the applicant's right to immunity from prosecution.

The allegation was also made that the applicant answered all questions to the satisfaction of the court a quo and was consequently deserving of discharge in terms of section 267 of the CPEA.

As such, the failure to endorse the record was alleged to be an infringement of the applicant's constitutional right to a fair trial.

It is not clear which trial is referred to.

It is against this background that the applicant prayed for the aforementioned relief.

The respondent's argument was that there is no constitutional issue before the Court because the applicant's rights were sufficiently protected by section 268 of the CPEA.

The first issue for determination is whether or not the matter is properly before the Court.

The matter can be disposed of on this ground if the Court finds that the referral is not properly before it.

Section 175(4) of the Constitution provides as follows:

(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.” (emphasis added)

Rule 24 of the Rules is to the effect that:

(2) Where the person presiding over a court of lesser jurisdiction is requested by a party to the proceedings to refer the matter to the Court and he or she is satisfied that the request is not frivolous or vexatious, he or she shall refer the matter to the Court.” (emphasis added)

A constitutional matter is defined in section 332 of the Constitution to mean a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

It must arise or be raised in the proceedings in the subordinate court.

The presiding person may, if he or she is of the view that the determination of the constitutional issue by the Court is necessary for the purposes of the proceedings before him or her, mero motu refer the matter to the Court. If the matter is raised by any party to the proceedings, there must be a request by that party or any other party that the matter be referred to the Court for determination. If the presiding person is of the view that the determination of the constitutional matter by the Court is necessary for the disposition of the controversy between the parties and that the request for a referral is not frivolous or vexatious, he or she is obliged to refer the matter to the Court for determination. If the presiding person is of the opinion that the request for a referral is frivolous or vexatious, he or she shall refuse the request.

Regarding the meaning and content of the phrase “frivolous and vexatious”, the Court in Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S) stated the following at 568C-G:

In S v Cooper & Ors 1977 (3) SA 475 (T) at 476D, BOSHOFF J said that the word 'frivolous' in its ordinary and natural meaning connotes an action or legal proceeding characterised by lack of seriousness as in the case of one which is manifestly insufficient. The raising of the question for referral to the Supreme Court under section 24(2) of the Constitution would have to be found on the facts to have been obviously lacking in seriousness, unsustainable, manifestly groundless or utterly hopeless and without foundation in the facts on which it was purportedly based.

In Martin v A-G & Anor 1993 (1) ZLR 153 (S) it was held that the ordinary and natural meaning of the words 'frivolous or vexatious' in the context of section 24(2) of the Constitution had to be borne in mind and applied to the facts by the person presiding in the lower court to form the requisite opinion. GUBBAY CJ at 157 said:

'In the context of section 24(2) the word 'frivolous' connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word 'vexatious', in contra–distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed; it is not raised bona fide and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless.

See Young v Holloway & Anor [1895] P 87 at 90-91; Dyson v Attorney General [1911] I KB 410 (CA) at 418; Norman v Mathews (1916) 85 LJ KB 857 at 859; S v Cooper & Ors 1977 (3) SA 475 (T) at 476DG; Fisheries Development Corporation of SA Ltd v Jorgensen & Anor 1979 (3) SA 1331 (W) at 1339E-F.'”

As said in Nyagura v Ncube N.O. and Ors CCZ7/19 at pp 9-10 of the cyclostyled judgment, there must be a moment in the procedure set out in section 175(4) of the Constitution when the presiding person must address his or her mind to factors that answer a number of questions, including whether the request to refer the matter to the Court is frivolous or vexatious, and whether the determination by the Court is necessary for the purpose of the proceedings before him or her.

Therefore, the position of the law is that it is a request for referral that ought to be considered frivolous or vexatious and not the constitutional question itself.

In Nyagura v Ncube N.O and Ors supra, the Court held as follows at p 10 of the cyclostyled judgment:

It is not compliance with the requirements of the procedure of referral of a constitutional matter to the Court prescribed under section 175(4) of the Constitution to say the constitutional question was raised and the presiding person declined to refer it to the Court. The reason is that it is the request to refer a constitutional question to the Court which must have been found to be frivolous or vexatious. It is not the constitutional matter itself that has to be found to be frivolous or vexatious.” (emphasis added)

In casu, the court a quo said the following in referring the matter to the Court:

It is the court's finding that there is nothing frivolous or vexing about the applicant seeking to get an answer as to what happened to the handicap that the respondent initially felt encumbered it before proceeding against it (sic). Also can a fair trial be held when there are some issues left unclarified like the issue of what interpretation is to be given to the non-endorsement of whether immunity was granted or not and would it be fair for such to be left unclarified and open to any interpretation by any party, which will obviously interpret it to serve its own purpose and support its case or argument? The court cannot shrug away a possible violation of one of the fundamental rights enshrined in the Constitution based on assumptions that the trial court in S v Dumisani Nyathi meant this or that, and if such assumptions raise questions which neither of the parties can fully answer with confidence then it is this court's view that it is proper for the matter to be referred on the following question …”.

It is therefore apparent that the court a quo did not make a finding as to whether the applicant's request for a referral was frivolous or vexatious. Instead, it appears that the court a quo found that the constitutional question itself was not frivolous and vexatious and that it deserved the attention of the Court.

The court a quo sought to interpret the provisions of section 267(2) of the CPEA to mean that a trial court which has heard evidence of an accomplice witness called by the prosecution ought to enter on the record of proceedings the fact that the person did not answer fully to its satisfaction all such lawful questions put to him or her.

According to the court a quo, a decision to prosecute the accomplice for the offence in respect of which he or she had given evidence for the prosecution, where the trial court has not entered on the record of proceedings the fact that it is not satisfied that the accomplice had fully answered all lawful questions put to him or her in respect of the offence, would constitute a violation of the right of the accomplice to a fair hearing.

Needless to say, the interpretation sought to be placed on the provisions of section 267(2) of the CPEA by the court a quo is not borne out by the clear and unambiguous language of the provision.

A determination of whether or not the request is frivolous or vexatious is not a finding to be undertaken by the Court on behalf of the referring court. It is an exercise which must be carried out by the presiding person during the course of proceedings in the lower court. The presiding person ought to apply his or her mind to the request and make an assessment, based on the evidence presented, whether or not the request is frivolous or vexatious.

The standard by which the facts on which the raising of a question is based must be measured is put so high so as to enable the person presiding in the lower court to stop legal proceedings that should not have been launched at all. (Williams and Anor v Msipha N.O. and Ors supra).

The purpose of the exercise of the jurisdiction of a subordinate court under section 175(4) of the Constitution is to protect the process of the Court against frivolous or vexatious litigation.

The importance of guarding the Court against the abuse of its process through the adjudication of matters that ought not to have passed the frivolity or vexatiousness test cannot be over-emphasised. The Court must protect its integrity and ensure that it only adjudicates that which it is constitutionally mandated to hear and determine. Consequently, where the procedures of the Court are used to achieve purposes for which they are not intended that would amount to an abuse of process.

It is in this context that presiding persons ought to exercise their minds when seized with a request for a referral to the Court.

The court a quo failed to do so.

The facts of the matter raise an issue of grave concern to the Court. This concern comes after a proper reading of the record and a careful analysis thereof.

It is common cause that the trial court did not make an endorsement on the record as regards the applicant's liability to prosecution after he had testified for the prosecution as an “unconvicted accomplice witness”. It is also common cause that the respondent expressed the intention to appeal against Nyathi's discharge after the trial court had found him not guilty of the offence of stock theft. It was the respondent's case that the trial court ignored all evidence on record which proved beyond a reasonable doubt that Nyathi had committed the offence of stock theft.

Owing to the conduct of certain officials representing the respondent who were apparently in agreement with the findings of the trial court, the respondent did not pursue the appeal against that decision. Instead, the position was taken to channel the respondent's resources towards prosecuting the applicant, who had been found in possession of the stolen beasts.

The Court finds the respondent's decision to abandon the appeal against Nyathi's discharge unsettling at the very least. It appears that there is evidence on the record which might link Nyathi to the said offence. It is, however, not incumbent upon the Court to point out such evidence or to make substantive or authoritative findings regarding the said evidence. Suffice to say that it appears to the Court that the respondent, through those who acted on behalf of the Prosecutor-General, may have misdirected itself in electing not to pursue the appeal in these circumstances. It is not without considerable reservation that the Court makes the aforementioned observations.

To err on the side of caution, it must be emphasised that the Court's sentiments ought not be taken as a direction to the respondent, but only as mere observations, that came about after a careful analysis of the record.

It is necessary that a copy of this judgment be brought to the attention of the Prosecutor General.



GARWE JCC: I agree

MAKARAU JCC: I agree

GOWORA JCC: I agree

HLATSHWAYO JCC: I agree

PATEL JCC: I agree

GUVAVA JCC: I agree

MAVANGIRA JCC: I agree

BERE JCC: I agree









Morris-Davies & Co, applicant's legal practitioners

National Prosecuting Authority, respondent' s legal practitioners

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