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
