GARWE
JA:
[1] After
perusing the papers filed of record and hearing counsel, the court
dismissed the application and indicated that the reasons for the
order would follow in due course.
[2] What
follow are the reasons for that order.
FACTUAL
BACKGROUND
[3] The
applicants appeared before a Magistrate at Nyanga on 18 February 2011
facing charges of public violence as defined in section 36 of the
Criminal Law [Codification and Reform] Act [Chapter
9:23].
The applicants were legally represented. At the hearing the
applicants raised a number of complaints regarding the manner of
their arrest. The matter was thereafter postponed on a number of
occasions to enable the Court to deal with the various issues raised.
On a date that is unclear on the record but in May 2011, the
applicants, without giving notice to the prosecution, applied to the
magistrate for the matter to be referred to the Supreme Court in
terms of section 24(2) of the former Constitution of Zimbabwe. They
tendered a written application in which they chronicled various
violations of their constitutional rights at the instance of the
State and other persons.
[4] In
the application, the applicants raised the following issues:
(i)
Whether or not the manner of their arrest violated their right to
liberty protected by section 13(1) of the former Constitution.
(ii)
Whether or not the failure by the police to apprehend the persons
who had abducted, tortured and assaulted them violated their right to
the protection of the law enshrined in section 18(1).
(iii)
Whether or not the discretion to arrest bestowed upon the police was
not improperly exercised.
(iv)
Whether or not the assaults, perpetrated upon them, as well as the
subsequent torture and denial of medical attention, constituted
inhuman and degrading treatment.
(v)
Whether or not the failure by the State to cause investigations to
be carried out into these complaints violated their rights under
section 18(1) and 18(1)(a) of the Constitution.
(vi)
Whether or not their detention at Nyamaropa and Nyanga Police
Stations was under conditions that constituted inhuman and degrading
treatment.
(vii)
Whether or not section 121(3) of the Criminal Procedure and Evidence
Act [Chapter
9:07],
which provides that a person who has been granted bail by a court
shall remain in custody for a period of up to 7 days once the
Attorney-General indicates that he intends to appeal the decision,
violates their right to the protection of the law.
[5] During
the hearing before the Magistrate, the applicants did not lead any
evidence to substantiate these claims.
[6] In
his response, the prosecutor indicated that the application for
referral was opposed. He denied the suggestion that the police did
not have a reasonable suspicion that a crime had been committed at
the time they arrested the applicants.
[7] In
a terse judgment, the magistrate held that the issues of over
detention and alleged kidnapping of the applicants deserved “the
attention of the Supreme Court which court would need to make a
proper inquiry”. On that basis he then referred the matter to the
Supreme Court.
ISSUES
FOR DETERMINATION BEFORE THIS COURT
[8] In
his submissions before us, Mr Chadambuka,
for
the applicants, submitted that the rights of the applicants have been
violated in several respects. He therefore implored the court to
issue various declaraturs
and, as consequent relief, an order permanently staying the criminal
proceedings they were being subjected to.
[9] On
the other hand, Mr Nyazamba,
for
the State,
urged
this Court to find that no proper inquiry had been carried out before
the Magistrates Court and, most importantly, the failure by the
applicants to lead evidence to substantiate their allegations was
fatal. He therefore prayed for the dismissal of the application.
WHETHER
THE MATTER WAS PROPERLY REFERRED
[10] The
position is settled that a judicial officer faced with an application
for referral has no option but to refer, unless, in the opinion of
the Court, the raising of the question is frivolous and vexatious –
Martin
v Attorney-General
1993 (1) ZLR 153 (S) 156 H.
[11] The
Magistrate at Nyanga did not, as he should have, ask himself whether
the issues raised were not frivolous and vexatious. Indeed it
appears the magistrate was not sure as to what was required of him.
He made no finding that the application was not frivolous or
vexatious. In justifying the referral of the issues to the Supreme
Court, he stated:
“Over-detention
and alleged kidnapping of some of the accused persons would need the
Supreme Court to look into the matter.
It
is therefore clear as the issues complained of are also linked to the
death of one of the accused persons. The Supreme Court would need
therefore to make a proper enquiry (sic).
The
court is of the decision that the issues raised concerning the
declaration of rights are referred to Supreme Court for
determination.”
[12] The
above remarks clearly demonstrate that the Magistrate had no idea
what he was supposed to do. He seemed to think that the factual
inquiry was to be undertaken by the Supreme Court – clearly a
misdirection on his part. This misdirection resulted in an even more
serious irregularity, to which I now turn.
AN
APPLICANT MUST ADDUCE EVIDENCE
[13] Various
allegations of impropriety had been made against the police and
supporters of the Zanu (PF) Political Party. No evidence was led to
substantiate these. The prosecutor made it clear that the facts were
in dispute.
[14] Before
permitting an accused person to raise the question whether his
constitutional rights have been violated, it is a requirement that
ample written notice of such an application should be given to the
State. This is because the prosecution is entitled to be afforded
the time and opportunity to investigate the complaint and to be ready
to adduce evidence, if necessary - S
v Banga
1995 (2) ZLR 297.
[15] Further
it is insufficient to make a statement from the bar, as the
applicants legal practitioners did in this case. The applicants
should have been called to testify under oath in order to
substantiate their complaints that their rights had been violated.
Had that happened the prosecutor would then have had the opportunity
to cross-examine the applicants and, thereafter, to adduce such
evidence as he may have considered necessary to contradict the
allegations made by the applicants. Only after hearing evidence from
both sides would the magistrate have been in a position to make
findings of fact, which findings he would have been bound to take
into account in deciding whether or not to refer the issues raised to
the Supreme Court. In short, it is the responsibility of the court
referring a matter to resolve any disputes of fact before making such
a referral.
[16] The
absence of oral evidence can be fatal to an application of this
nature because it completely disables findings to be made on the
complaints raised. It is on the basis of those findings that the
Supreme Court is called upon to deal with the allegations raised and,
where necessary, afford appropriate relief.
[17] In
S
v Banga (supra)
GUBBAY
CJ
remarked
at p301E-G:
“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. Only in
exceptional circumstances will an applicant be permitted to
supplement the record of the proceedings before the lower court by
the production of affidavits.”
[18] The
above remarks have been repeated by this Court in several other cases
since then. See for example the following: Matutu
v S
SC34/13;
Hellen
Matiashe v (1) The Honourable Magistrate Mahwe N.O. (2) The Attorney
General of Zimbabwe CCZ 12/14.
APPLICATION
NOT PROPERLY REFERRED
[19] This
application was therefore not properly referred to the Supreme Court
sitting as a Constitutional Court.
[20] In
the circumstances, the Court had no option but to dismiss the
application.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ: I
agree
ZIYAMBI
JCC: I
agree
GWAUNZA
JCC: I
agree
GOWORA
JCC:
I
agree
HLATSHWAYO
JCC: I
agree
GUVAVA
JCC: I
agree
MAVANGIRA
AJCC: I
agree
Zimbabwe
Lawyers for Human Rights,
applicant's legal practitioners
Attorney
General's Office,
respondent's legal practitioners
