GARWE
JA: In
this application, the applicant seeks the following relief:
1.
A declaration that the refusal by the Magistrate to refer the issues
raised by the applicant to the Supreme Court is wrong at law and
consequently a breach of the applicant's right to the protection of
the law enshrined in section 18(1) of the former Constitution of
Zimbabwe.
2.
A declaration that the decision by the Attorney-General to proceed
with the prosecution of the applicant more than five years after the
alleged commission of the offence is a violation of the applicant's
right to the protection of the law under section 18 of the former
Constitution.
3.
A declaration that the present application is properly before the
Supreme Court.
4.
An order that, the prosecution of the applicant being a violation of
her right under section 18, such prosecution be and is hereby
permanently stayed.
5.
An order that the respondents pay the costs of this application.
THE
BACKGROUND
The
applicant and one Cecil Rhaniel Chengetai Muderede (“Muderede”)
were engaged in an intimate relationship until about 2005 when the
relationship came to an end. At the centre of the dispute giving
rise to the present proceedings are two properties. The first is
Number 4 Goodall Avenue, Emerald Hill, Harare registered in the name
of Helce Enterprises (Pvt) Ltd, a company incorporated according to
the laws of Zimbabwe. It is common cause that, from the time of its
incorporation, the applicant's name appeared on the official
records of the company as one of the two directors of the company.
The second property is Number 106 Lomagundi Road, Avondale,
registered in the name of another company, Drisdane Investments (Pvt)
Limited. It is not in dispute that it was Muderede who purchased
this property.
In
May 2004 Muderede was specified under the Prevention of Corruption
Act [Cap
9:16].
Following this development, the applicant proceeded to the offices of
the Registrar of Companies where, using the specification of
Muderede, she was able to remove the name of Muderede as a director
of Helce Enterprises and in his place had the names of her brothers,
Kumbirai Matiashe and Kudzai Matiashe, substituted as directors. On
the strength of a board resolution passed by the new board, the
applicant was able to obtain a duplicate copy of the deed of transfer
for Number 4, Goodall Avenue, Emerald Hill. The applicant was able,
using the same modus
operandi,
to get another duplicate copy of the title deeds for Number 106
Lomagundi Road, Avondale.
On
7 June 2007 Muderede filed a complaint of fraud against the applicant
with the police. The allegation on both counts was that the
applicant had misrepresented that Muderede had resigned as a director
of Helce Enterprises (Private) Limited and Drisdane Investments
(Private) Limited and in his place had appointed her two brothers,
Kundai Matiashe and Kumbirai Matiashe. It was alleged that on the
basis of the misrepresentation, the applicant managed to get
duplicate title deeds for both properties.
On
25 June 2007, the applicant made a statement to the police. She was
thereafter placed on remand. On 26 February 2008 the charges against
the applicant were withdrawn by the State. However on 17 July 2012
the applicant was served with summons to appear in court on 6 August
2012. On 21 August 2012 the applicant then filed an application in
the Magistrates Court seeking a declaration that the decision by the
Attorney-General to try her after six years violated her right to the
protection of the law enshrined in section 18 of the Constitution and
that the matter be referred to the Supreme court in terms of section
24(2) of the former Constitution.
In
papers filed before the Magistrates Court, the appellant stated that
the delay of six years during which no trial had taken place was
wholly attributable to the State. She had always been available to
attend court to answer any allegations. Further she stated that one
of her defence witnesses, Doctor Iris Sarupinda, who was present
during the time she had a relationship with Muderede, had relocated
to Europe and she was not aware of her present whereabouts. The
appellant did not give oral evidence in support of her application.
In
the Magistrates Court it was not in dispute that on 24 July 2009 and
2 November 2010 the applicant filed a complaint with the police
against Muderede and his wife Michelle. In the complaint she alleged
that the two had fraudulently used the title deeds for the two
properties to secure mortgage loans in favour of Shankuru Estates.
She also complained that a Mr Magwere, from the office of the
Registrar of Deeds, a Mr Shadreck Beni from Metropolitan Bank and one
Mujokoro, a legal practitioner, had colluded with Muderede and his
wife in the fraudulent registration of the mortgage bonds over the
two properties.
The
State opposed the application for referral of the matter to this
Court and led evidence from the Investigating Officer, Detective
Inspector Charles Chirove.
The
Investigating Officer told the court that a number of factors had
contributed to the delay in the prosecution of the matter. In 2008
and 2009 the country experienced a severe economic meltdown which
affected the ability of the police to carry out its functions. At
one stage the police received reports that Muderede was in South
Africa. Because Muderede could not be located the charges against
the applicant were withdrawn.
Thereafter
in 2009 and 2010 the applicant filed reports with the police based on
the same facts against Muderede, his wife and other persons resulting
in the arrest of Muderede on fraud charges. When both cases were
sent to court, Muderede queried why his complaint, which had been
filed earlier, was being overtaken by the complaint filed later by
the applicant. Muderede even approached the Anti-Corruption
Commission alleging that the police were giving the applicant
preferential treatment.
The
applicant also harassed the police and even made complaints to Police
General Headquarters against the witness and several of his fellow
officers. She was saying she wanted to be consulted before the
police made any decision on this matter.
He
told the court he formed the opinion that the applicant was throwing
spanners into the works to ensure that the matter went nowhere.
In
an effort to make some progress the State then reached an agreement
with the applicant and Muderede that the case in which Muderede was
an accused was to be tried first. In the event that Muderede was
convicted, then the case in which he was complainant would die a
natural death.
However
in the event that he was acquitted, then the case in which applicant
was an accused would then commence.
As
it so happened, Muderede was acquitted in 2012 as a result of which
applicant was then summoned to appear in court.
It
was his evidence that it was the applicant who was largely to blame
for the delay.
The
Magistrates Court was of the view that since the applicant had
participated in the agreement which had contributed to the delay she
cannot now be heard to complain.
On
that basis the court found the application to be frivolous and
vexatious.
The
court further found that the application was an attempt to further
delay the proceedings. The court therefore dismissed the
application.
Following
that decision the applicant filed the present application in terms of
section 24(1) of the former Constitution.
THE
ISSUES FOR DETERMINATION
It
seems to me that the issues that arise for determination are twofold.
These are:
(i)
Firstly, whether the matter has been properly brought before this
Court in terms of section 24(1) of the former Constitution.
(ii)
Secondly, if so, whether the applicant is entitled to a permanent
stay of proceedings.
WHETHER
THE MATTER IS PROPERLY BEFORE THIS COURT
In
dismissing the application for the referral of the matter to the
Supreme Court, the magistrate commented:
“Accused
now wants to renege from her commitment that she would only be
prosecuted if only Cyril Muderede was acquitted because the facts
forming the basis of the court charges were similar. Cyril Muderede
has now been acquitted so the natural interpretation of their
agreement should follow. Accused participated in circumstances which
caused the delay so she should not cry foul because if she had no
hand in this matter the State could have proceeded to cause the trial
of both matters at the same time but in different courts.
Accordingly,
I find that the application is just meant to further delay
proceedings and it is frivolous and vexatious. Accordingly the
application is dismissed.”
It
is common cause that, at the time of the making of the application,
there had been a delay of over five years in the prosecution of the
matter. That this delay was presumptively prejudicial is without
doubt.
The
applicant was entitled to challenge the decision of the State to
prosecute her on a charge of fraud in respect of which she had been
charged more than five years previously. The delay was such as to
trigger an inquiry into the possible violation of the applicant's
rights to the protection of the law.
It
is clear from his reasons for dismissing the request for referral
that the Magistrate did not ask himself whether a constitutional
issue did arise from the proceedings.
He
considered that the applicant had contributed to the delay and that
she was trying to further delay the day of reckoning. On that basis
alone he found the application to be frivolous and vexatious.
I
am satisfied that the Magistrate was wrong in determining the
application on the basis of who was to blame for the delay.
As
Mr Mpofu
correctly submitted, the Magistrate asked himself the wrong question
and inevitably came to the wrong conclusion.
Indeed
the State conceded that the decision to refuse to refer the
application was wrong and that it violated the applicant's right to
the protection of the law as provided in section 18(1) of the former
Constitution.
In
these circumstances the applicant was entitled to approach this Court
directly – Martin
v Attorney General & Another
1993
(1) ZLR 153 (S) 158H; Mukoko
v Commissioner-General of Police & Ors
2009 (1) ZLR 21, 24B.
This
Court must now place itself in the position it would have been in had
the Magistrate, as he ought to have done, referred to it the question
raised before him.
WHETHER
THE APPLICANT IS ENTITLED TO A PERMANENT STAY OF PROCEEDINGS
The
factors that this Court is enjoined to consider in an application of
this nature are now settled. These are:
(a)
The length of the delay;
(b)
The reason given by the prosecution for the delay;
(c)
Whether the accused person asserted his rights; and
(d)
The prejudice occassioned to the accused by the delay.
In
re Mlambo
1991
(2) ZLR 339 (S), 350A-G; Fikilini
v Attorney-General
1990 (1) ZLR 105, 113A-H (SC).
I
proceed to consider each of these factors in turn.
(a)
THE LENGTH OF THE DELAY
The
delay in bringing the applicant to trial is reckoned from 25 June
2007 when she was charged. See Shumba
v Attorney-General
1997 (1) ZLR 589, 592G (S). The fact that charges were withdrawn in
2008 is irrelevant. The clock continued ticking.
In
re Mlambo (supra)
at p346E-H.
The
applicant was summoned to appear in court for trial on 6 August 2012.
The delay from the time she was cautioned was therefore just over
five years. That delay was inordinate and sufficient to trigger an
inquiry into the possible breach of the applicant's rights under
section 18(2) of the Constitution.
(b)
THE REASONS FOR THE DELAY
In
her application before the court a
quo,
the applicant attached an affidavit in which she explained the basis
of her request for the matter to be referred to the Supreme Court.
She did not give oral evidence.
In
the affidavit she stated that she had not contributed to the delay in
any way and that it was the State that had employed dilatory tactics
in the prosecution of the matter.
The
State however led evidence from the Investigating Officer.
His
evidence was that the police force, like most other State entities in
the country, was affected by the economic difficulties of 2008–2009.
The result was that the police had no resources to look for Muderede
who was in Banket and at one stage was reportedly in South Africa.
Instructions had also been issued for further investigations to be
carried out after the withdrawal of the charges in 2008.
The
main cause of the delay however was the fact that the applicant filed
two complaints in 2009 and 2010 based on the same facts. The result
was that Muderede, who had been complainant earlier, also became an
accused.
The
witness explained that the applicant brought a lot of pressure to
bear on the police. She made reports against several police officers
including the investigating officer to Police General Headquarters.
She wanted her complaint tried first.
Muderede
too complained that the police were giving preferential treatment to
the applicant. It was because of this situation that an agreement
was then reached between the applicant, the State and Muderede that
the matter in which the applicant was complainant be tried first. If
Muderede was convicted then his complaint would die a natural death.
However if he was acquitted then the case in which the applicant was
the accused would be resuscitated.
On
that basis, Muderede was tried and was acquitted. Consequently
applicant was then summoned so that she would undergo trial on the
allegations levelled by Muderede.
Although
the Investigating Officer was cross-examined at length on this
evidence, he remained unshaken and was adamant that the applicant
played a significant role in the delay.
The
applicant did not give evidence and consequently the evidence given
by the Investigating Officer remained largely uncontroverted.
The
position is now settled that an applicant must adduce evidence and be
cross-examined on it - S
v Banga
1995 (2) ZLR 297.
Indeed
this Court has emphasized that the absence of viva
voce
evidence can be fatal – S
v Nhando
2001 (2) ZLR 84; Matutu
v S
SC
34/13.
In
State
v Banga (supra)
GUBBAY CJ stressed the need for an applicant to testify on the extent
to which, if at all, the cause of the delay was his responsibility,
whether he had asserted his rights and whether any actual prejudice
had been suffered as a result. At page 301D-G, the learned Chief
Justice remarked further:
“Moreover,
the absence of viva
voce
evidence 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, particularly where, as here,
his liberty was not interfered with; and that it has impaired his
ability to exonerate himself from the charge due to the death,
disappearance or forgetfulness of potential witnesses. See In re
Mlambo
supra
at 352G and 354D-E; S
v Demba
S-194-94; S
v Marisa supra
at p9.
I
trust that I have made it clear that it is essential for an accused,
who requests a referral to this court of an alleged contravention of
the Declaration of Rights, to ensure that evidence is placed before
the lower court. It is on that evidence that the opinion has to be
expressed as to whether the question raised is merely frivolous or
vexatious. It is on that record that the Supreme Court hears
argument and then decides if a fundamental right had been infringed.”
On
the basis of the evidence adduced before the court
a quo,
the position may be summarized as follows:
The
delay between June 2007 when the applicant was charged and the year
2009 is attributable to the State. However that period was explained
by the State. When the charge was withdrawn in 2008, it had not been
possible for the police to contact Muderede. There also had been
instructions for some aspects of the case to be further investigated.
Further this was the time of hyperinflation and the police had no
resources to look for Muderede.
This
Court can take judicial notice of the fact that indeed 2008 and 2009
were very difficult years and even the operations of this Court were
affected owing to the economic situation then prevailing. It was a
situation that affected government and the citizenry at large.
In
my view that explanation cannot be said to be unreasonable.
The
delay after 2009 is explained by the fact that the applicant filed
criminal complaints against Muderede, Muderede's wife and other
persons involved in the registration of the bond on the two
properties.
The
investigating officer explained the difficult situation he and other
officers found themselves. They had two dockets on essentially the
same facts. The complainant in the one case was the accused in the
other.
He
explained the pressure that was brought to bear on the police
officers by the applicant. The applicant made complaints to Police
Headquarters and investigations into her complaints were instituted.
The
dilemma that faced the prosecuting authorities was which case to
prosecute first.
The
applicant wanted the case in which she was complainant to be tried
first whilst Muderede was insisting that his complaint be tried first
as it was first in time. It was against that background that an
agreement was reached between the State, the applicant and Muderede
that the applicant's complaint be tried first and in the event
Muderede was convicted, then his complaint would die a natural death,
and, if not, the applicant would then stand trial. Indeed Muderede
was tried and acquitted.
It
was when the State then sought to proceed with the prosecution of the
applicant that she then filed the application for stay of criminal
proceedings.
In
my view, whilst the State, being dominus
litis,
should have been more assertive, the reality is that the State was
faced with a difficult question given the allegations and counter
allegations made by both, as to whom to prosecute first between the
two.
The
delay was occasioned by this confusion and the agreement that
Muderede be prosecuted first.
The
explanation in my opinion is acceptable. It is important that one
does not take an armchair view of the situation that arose.
In
all the circumstances I am of the view that the State has proferred a
reasonable explanation for the delay.
(c)
WHETHER APPLICANT ASSERTED HER RIGHTS
It
must be accepted that, in March 2008, when a further remand was
refused, this was at the instance of the applicant. To that extent
therefore she asserted her rights.
However
in 2009 the applicant also filed a complaint on the same facts. The
police investigated both complaints. Two dockets were opened. Both
the applicant and Muderede were alleging that the police were not
impartial.
Clearly
during this time the applicant was aware, or ought to have been, that
the State wanted to prosecute her. She is said to have approached
Police Headquarters making a number of allegations against certain
police officers.
She
did not, during this period, seek to assert her rights.
Instead
she went along and only after Muderede's acquittal and the decision
by the State to prosecute her did she then file the application to
permanently stay the criminal proceedings against her.
The
totality of the circumstances suggests that whilst in 2008 she
asserted her rights, from 2009 she did not and was content to go
along in the hope that perhaps the criminal allegations would go
away.
(d)
THE PREJUDICE OCCASSIONED BY THE DELAY
The
issue of prejudice should be assessed in the light of the interest of
the accused which the speedy trial right was designed to protect.
Three such interests have been identified. These are: (i) To prevent
oppressive pre-trial incarceration;
(ii)
To minimize anxiety and concern of the accused; and
(iii)
To limit the possibility that the accused will be impaired in his
defence.
Fikilini
v Attorney–General (supra)
at
113H–114A.
In
her affidavit both in the court a
quo
and before this Court the applicant says her friend, Dr Iris
Sarupinda, who was present at the time the companies were formed, has
relocated to Europe and her present whereabouts are unknown.
This
case is a good example why viva
voce
evidence is essential in an application of this nature. The applicant
does not say what evidence exactly Doctor Sarupinda would give in her
defence. She does not say whether she suffered any anxiety during
this period. Because the applicant did not give evidence, the State
was not given the opportunity to cross-examine her on these issues.
She does not say when the doctor left the country and what efforts
she has made to trace her current whereabouts.
In
any event the formation of a company is never without formality.
Various documents have to be filed showing the shareholding,
directorship, registered office, etc, of a company.
It
is not suggested that this documentation is no longer available.
The
suggestion that the absence of Doctor Sarupinda will prejudice her is
a bald one and in my view would not, in the absence of further
substantiation, justify a permanent stay of the proceedings against
her.
DISPOSITION
In
my view no justification for a permanent stay of the criminal
proceedings pending against the applicant has been shown. Put
another way, the suggestion that the right to a fair trial within a
reasonable time has been contravened is not sustainable on the facts
of this case.
In
the result therefore the application must fail.
The
application is accordingly dismissed with no order as to costs.
CHIDYAUSIKU
CJ:
I
agree
MALABA
DCJ:
I
agree
ZIYAMBI
JA:
I
agree
PATEL
JA: I
agree
Mtetwa
& Nyambirai,
applicant's legal practitioners
Prosecutor
General,
Counsel for the 1st
& 2nd
respondents
