These are the reasons.
This matter was referred to the Supreme Court by the
Magistrate in terms of section 24(2) of the Constitution of Zimbabwe which
provides as follows:
“24 Enforcement of protective
provisions
(1)…,.
(2) If in any proceedings in the High Court or in any court
subordinate to the High Court any question arises as to the contravention of
the Declaration of Rights, the person presiding in that court may, and if so
requested by any party to the proceedings, shall refer the question to the
Supreme Court unless, in his opinion, the raising of the question is merely
frivolous or vexatious.”
The referral came about in the following manner.
On 8 February 2012, the applicant, who is a registered
legal practitioner, appeared before the Magistrate in Gweru in response to a
summons to answer a charge of contravening section 16(2)(b) of the Public Order
and Security Act [Chapter 11:17]. The offence was allegedly committed on 25
June 2005. When the charge was put to him, the applicant did not plead to it
but instead made an application for the matter to be referred to the Supreme
Court in terms of section 24(2). It was his intention to seek an order:
“For a permanent stay of prosecution in terms of the
Constitution of Zimbabwe in section 18(2) on the basis that my right to a fair
trial within reasonable time has been violated.”
He alleged that the charges emanated from an incident which
occurred on 25 June 2005 in Zaka and that a warned and cautioned statement was
recorded in July of the same year. The delay in bringing him to trial amounted
to six years and eight months. The allegation was that the delay was
attributable to the conduct of the State because he resides in Masvingo and has
never removed himself from the jurisdiction of the courts. He averred that
nothing could have been done by him to assert his rights especially as the
matter was not brought to court on a remand hearing.
He alleged, further, that 'the only [State] witness who is
available' had his statement recorded on 26 June 2005. According to him, the
investigations were then complete and the prosecution ought to have taken place,
at the latest, in December 2007 when authority was granted by the Attorney
General to prosecute. He alleged that
the failure by the State to bring him to trial within a reasonable period
constituted a violation of his constitutional right enshrined in section 18 of
the Constitution.
The prosecutor, in response, submitted that the delay 'was
not a deliberate act by the State.' In the first place, one of the State
witnesses had died. Secondly, there was, on record, a letter dated 10 August
2008 wherein the applicant had requested that he be prosecuted by a person who
did not know him; and, thirdly, the applicant is a Deputy Minister tasked with
national duties and the police were having difficulties in effecting personal
service of the summons on him. After the authority to prosecute was granted by
the Attorney General in 2007, there was a shortage of resources and transport.
The Prosecutor further alleged that when the matter was due
to be heard, the Director of Public Prosecutions directed that the trial be
heard in Gweru and not Masvingo. Most of the court officials declined to deal
with the matter because they knew the applicant on professional grounds, and,
even on the date of the hearing, two court officials refused to entertain the
matter on professional grounds.
Accordingly, the delay could not be wholly attributable to the State.
No evidence, whether on affidavit or viva voce, was led by
the applicant in support of his allegations.
This is totally unacceptable. In S v Banga 1995 (2) ZLR 297
this Court remarked as follows:
“Regrettably, the manner in which the legal practitioner
requested the referral was totally misconceived. It was wholly insufficient to
make a statement from the bar, and then to point soley to the length of the
delay. He was obliged to call the applicant to testify to the extent to which,
if at all, the cause of the delay was his responsibility; to whether at any
time before 16 August 1994, he had asserted his right to be tried within a
reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a
result of the delay.
Such a fundamental omission on the part of the defence is
fatal to the success of the application.”
The magistrate was satisfied that the raising of the
question of the violation of the applicant's constitutional right was not
frivolous. He referred the matter to this Court.
The referral was improper.
This Court has so stated time and time again. As far back
as 1995, it was said:
“It seems to me, also, that before permitting an accused
person to raise the question of not having been brought to trial within a
reasonable time, the lower court should be satisfied that ample written notice
has been given to the State, with a copy filed of record, of the intention to
advance the complaint. The prosecution is entitled to be afforded the time and
opportunity to investigate the cause of the delay and to be ready to adduce evidence
as to the reasons therefor, if it is considered necessary to do so”.
See S v Banga 1995 (2) ZLR 297….,.
The prosecutor must be given written and adequate notice of
the accused person's intention to make the application. The Magistrate must
hear evidence from the applicant and the prosecutor must be given an
opportunity to cross examine the applicant and to lead any evidence it
considers necessary after which the magistrate must make a ruling based on the
evidence. However, this was not done.
At the hearing before this Court, it was glaringly apparent
that there were disputes of fact which needed to be resolved. It is the
function of the referring court to resolve disputes of fact.
It goes without saying that a delay of seven years in
prosecuting a criminal charge is presumptively prejudicial and would, generally
speaking, trigger an inquiry by this Court into the constitutionality of the
delay. See Gadzanai Nkomo & Anor v The State SC52-06.
However, the applicant has placed no evidence before the
Court from which it can be concluded that the delay in bringing him to trial is
totally attributable to the State, has caused him prejudice, and is a violation
of his right to a fair trial. I stress here that the absence of evidence is
fatal to the application. In S v Banga 1995 (2) ZLR 297…., it was held that the
absence of viva voce evidence could be fatal to an applicant's case because it;
“completely disables findings to be made that the long
delay has been the cause of mental anguish and disruption to the business and
social activities of the accused,…, and that it has impaired his ability to
exonerate himself from the charge due to death, disappearance or forgetfulness
of potential witnesses.”
The application in casu, having no evidential
basis, is fatally defective. 