The warrant of arrest was then cancelled on the 9th of October, on the very day that this application was filed, and is no longer of any concern.
Nevertheless, the applicant still seeks an interim order barring the first respondent, who was the presiding magistrate in a criminal matter before the Chinhoyi Magistrates Court, from compelling him to testify in that matter. He also seeks a final order setting aside the subpoena issued on the 2nd of October 2009 for him to attend and testify in the criminal matter.
The latter involves the prosecution of the fourth respondent under the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has been set down to resume on the 4th of November 2009.
Objections in Limine
Counsel for the fourth respondent has raised several objections in limine:
(i) Firstly, that the applicant's plea on the merits is one of State privilege, and, as such, it must be raised by way of a sworn affidavit from the head of the Ministry concerned, viz. the Ministry responsible for land resettlement, and not by the applicant himself;
(ii) Secondly, that the applicant's founding affidavit, and his lawyer's supporting affidavit, must both be disregarded as the former contains no substantive averments and the latter cannot be used in support of an affidavit that avers nothing of substance.
As regards the first objection, counsel relies on FELTOE: A Guide to Administrative and Local Government Law in Zimbabwe (2006)…,.
While I have no doubt that the learned author is correct in his general statement of the procedure to be applied, I am not persuaded that his proposition necessarily and invariably applies to every claim of privilege by a witness in terms of section 295 of the Criminal Procedure and Evidence Act [Chapter 9:07], viz. on the grounds of public policy and/or public interest.
In my view, the form in which the privilege is claimed would depend upon the nature of the evidence in question and the context in which the evidence is called for.
In the instant case, it seems to me that the privilege has been appropriately raised through the supporting affidavit of the applicant's lawyer. Accordingly, the fourth respondent's objection in this regard cannot be sustained.
Turning to the second objection, it appears that the deponent to the supporting affidavit, Itayi Ndudzo, personally attended the Magistrates Court on the 6th of October 2009 and had personal knowledge of the relevant proceedings and the record thereof.
As is correctly conceded by the fourth respondent's counsel, a legal practitioner can depose to issues of procedure and issues of fact that only he and not the client can depose to.
The applicant himself had no knowledge of what transpired at the Magistrates Court, except by way of hearsay, and properly associates himself with the averments contained in Itayi Ndudzo's affidavit on the basis that the latter was fully seized with the matter and in attendance at the court at the relevant time.
It follows that the preliminary objection on this point must also fail.
Basis of Application
The present application is by way of criminal review in terms of section 29 of the High Court Act [Chapter 7:06].
It was raised, in the course of argument, by counsel, that, the application is formally defective in that it has not been brought as a court application pursuant to Rule 256 of the High Court Rules, 1971 and that the review jurisdiction of this Court must be exercised with the concurrence of another judge.
As regards the first point, I take the view that Rule 256 is confined to civil matters and proceedings and does not apply to criminal reviews. In any event, it seems unnecessary for me to decide the point for present purposes, as I am inclined to entertain this matter on the robust approach adopted in State v Strowitzki 1995 (2) SA 525…, to wit:
“It is not the form of the procedure used which matters so much as the nature and substance of the application itself.”
As for the second point, the final order sought by the applicant requires the setting aside of the subpoena issued by the Magistrates Court.
This clearly falls within the purview of subparagraph (ii) of section 29(2)(b) of the High Court Act and would require the concurrence of another judge by virtue of the peremptory proviso to section 29(5)(b): see Attorney-General v Makamba 2004 (2) ZLR 63 (S)…,.
On the other hand, the interim relief sought herein is to bar the first respondent from compelling the applicant to testify pending the granting of the final order.
This relief, in my view, lies within the ambit of the general powers conferred by subparagraph (vi) of section 29(2)(b) and can be granted by a single judge in terms of section 29(5)(b) of the High Court Act.
Propriety of Application
Section 229 of the Criminal Procedure and Evidence Act [Chapter 9:07] regulates the process for securing the attendance of witnesses as follows:
“(1) In this section —
'prescribed officer' means the registrar, assistant registrar or clerk of the court or any officer prescribed by rules of court.
(2) Either party desiring to compel the attendance of any person to give evidence or to produce any books, papers or documents in any criminal case may take out of the office prescribed by rules of court the process of the court for that purpose.
(3) When the accused desires to have any witnesses subpoenaed and satisfies the prescribed officer of the court that —
(a) He is unable to pay the necessary costs and fees; and
(b) Such witnesses are necessary and material for his defence; the prescribed officer of the court shall subpoena such witnesses.
(4) In any case, where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the application to the judge or magistrate who may grant or refuse such application or may defer giving his decision until he has heard the other evidence in the case or any part thereof.”
It is averred, on behalf of the applicant, that, the subpoena that is impugned in casu was issued as an order of court and not merely through the office of the clerk of court. Accordingly, the first respondent was functus officio vis-à-vis the subpoena and his decision in that regard is properly reviewable by this Court.
In his affidavit, filed at the direction of the Court, the first respondent affirms that the subpoena was originally issued by the Clerk of Court at the request of the fourth respondent. Subsequently, following the reluctance of the police to serve the subpoena, the first respondent directed that the subpoena be “reissued to the police to serve the witnesses for the defence today.”
The first respondent's position is that, in essence, he merely ordered the police to serve the subpoena originally issued by the Clerk of Court.
Assuming that this evidence accurately reflects what transpired in the issuance and re-issuance of the subpoena, the subpoena was issued, not by the first respondent but by the Clerk of Court acting in terms of subsections (2) and (3) of section 229 of the of the Criminal Procedure and Evidence Act.
It follows that the validity of the subpoena, on its merits, was never canvassed before the first respondent and, therefore, he cannot be said to be functus officio in that regard.
Ordinarily, the applicant's claims of privilege and the validity or otherwise of the subpoena should, in the first instance, be ventilated before the Magistrates Court. Nevertheless, on the basis that the subpoena was originally issued by an officer of the court and subsequently reissued by order of the court, it may properly be regarded as an order of the court itself.
Moreover, whether the subpoena is regarded as an administrative order issued by the clerk or as an order of the court, this Court is endowed with the requisite jurisdiction in either case, by virtue of its inherent jurisdiction at common law as well as its statutory jurisdiction under section 26 of the High Court Act, “to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”
I therefore deem it perfectly appropriate to deal with the merits of this application in order to avoid further delays in the administration of justice.
Merits of Application
According to the fourth respondent, the evidence of the applicant is necessary for the purposes of his defence in his prosecution before the Magistrates Court under section 3 of the Gazetted Lands Act.
His defence, in essence, is that he was given an “offer letter” by the applicant which constitutes the requisite “lawful authority” entitling him to remain in occupation of the farm without contravening section 3 of the Gazetted Lands Act. His evidence is that this offer letter was returned to the applicant in order to correct a spelling error in his name and that the letter was then never handed back to him. He now wants the applicant to testify on his behalf by confirming that the offer letter was in fact originally issued to him.
The applicant challenges the propriety of his testimony on several grounds:
In particular, he relies on the grounds of inadmissibility of evidence and non-compellability of witnesses as set out in sections 252, 295 and 297 of the Criminal Procedure and Evidence Act [Chapter 9:07]. These sections provide as follows:
“252. No evidence as to any fact, matter, or thing shall be admissible which is irrelevant or immaterial and cannot conduce to prove or disprove any point or fact at issue in the case which is being tried.”
“295. No witness shall, except as in this Act is provided, be compellable or permitted to give evidence in any criminal proceedings as to any fact, matter or thing, or as to any communication made to or by such witness, as to which, if the case were depending in the Supreme Court of Judicature in England, such witness would not be compellable or permitted to give evidence by reason that such fact, matter or thing or communication, on grounds of public policy and from regard to public interest, ought not to be disclosed and is privileged from disclosure: Provided that…,.”
“297. No witness in any criminal proceedings shall, except as provided by this Act or any other enactment, be compelled to answer any question which, if he were under examination in any similar case depending in the Supreme Court of Judicature in England, he would not be compelled to answer by reason that his answer might have a tendency to expose him to any pains, penalty, punishment or forfeiture or to a criminal charge or to degrade his character: Provided that…,.”
The applicant's reasons for not testifying in the fourth respondent's criminal trial are threefold:
(i) Firstly, that the evidence sought does not constitute a valid defence to the charge and is therefore irrelevant and inadmissible;
(ii) Secondly, that he cannot be compelled to divulge matters involving land allocation as these are privileged by dint of public policy and public interest; and
(iii) Thirdly, that he is only being called as a witness in order to degrade his character and he cannot be compelled to do so.
By virtue of section 3(1) of the Gazetted Lands Act, “no person may hold, use or occupy Gazetted land without lawful authority.”
The term “lawful authority” is defined in section 2(1) of the Gazetted Lands Act to mean;
“(a) An offer letter; or
(b) A permit; or
(c) A land settlement lease” and “offer letter” means “a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter.”
As recent case authority demonstrates, mere verbal authority to occupy Gazetted Land or a general policy statement to that effect does not satisfy the requirement of lawful authority for the purposes of section 3 of the Gazetted Lands Act: see Chirikure & Others v Kenmast Farming (Pvt) Ltd & Others HH106-05; Chimuka & Others v Minister of Lands & Others HC4837/07.
The accused occupier must provide proof of a valid offer letter, permit, or land settlement lease.
Generally speaking, the mere production of an offer letter would, unless the origin or authenticity of the letter is questioned, avail as a complete defence to a charge of contravening section 3 of the Gazetted Lands Act.
However, where the offer letter in question is lost or destroyed, the evidence of the issuing authority or other public official may be necessary in order to establish that the letter was in fact issued to the occupier concerned at the relevant time. Such evidence would undoubtedly constitute the requisite lawful authority and a valid defence against a charge of contravening section 3 of the Gazetted Lands Act.
Having regard to the foregoing, I am satisfied that the testimony required from the applicant, as to whether he did or did not issue an offer letter to the fourth respondent in relation to the land in question, is highly relevant and clearly admissible for the purposes of the fourth respondent's acquittal or conviction under section 3 of the Gazetted Lands Act.
Moreover, given that such evidence is to be elicited from the applicant in relation to what he himself did or did not do vis-à-vis the fourth respondent as the authority responsible for issuing offer letters, there can be no question of him having to divulge any official secret or other confidential information inimical to public policy or the public interest.
I am therefore quite unable to perceive any logical basis for the privilege claimed by the applicant on the facts of this case.
As for the possible degradation of his character, there is nothing meaningful in the founding papers to substantiate the apprehended attack on his character. Ultimately, any such apprehension must be weighed against the constitutional right of every accused person to be afforded a fair criminal trial as enjoined and guaranteed by section 18(3) of the Constitution, and, in particular, the right “to obtain the attendance and carry out the examination of witnesses to testify on his behalf.”
It follows that the applicant has failed to establish any basis for justifying the interim relief that he seeks. Accordingly, this Court cannot interfere with the subpoena issued by the Chinhoyi Magistrates Court by barring the first respondent, or any other magistrate, from compelling the applicant to testify at the fourth respondent's criminal trial.
As regards costs, the applicant's counsel conceded, at the hearing of this matter, that the first respondent should not have been cited in his personal capacity and that he was entitled to his wasted costs, including the costs of appearance by counsel.
It is accordingly ordered that the applicant shall pay the first respondent's costs on a legal practitioner and client scale.
As for the other respondents, although the applicant has failed on the merits of his application, I am not persuaded that his approach to this Court was so unjustified or unnecessary as to warrant a punitive award of costs.
The second, third, and fourth respondents are therefore only entitled to their costs on the ordinary scale.
In the result, this application is dismissed with costs as aforesaid.
