CHIDYAUSIKU CJ: At the conclusion of submissions by counsel,
the Court dismissed this application but ordered a trial de novo before a different regional magistrate. The Court
issued the following order:
“IT IS ORDERED
THAT:
1. The
application for stay of prosecution is dismissed.
2. Consequent
upon the concession by the State regarding the fairness of the continued trial
before the same magistrate, the proceedings in case CRB 172-3/12 are quashed
and a trial de novo is ordered
before a different regional magistrate.
3. Detailed
reasons for judgment will be handed down in due course.”
The parties
were advised that reasons for judgment would follow. These are they.
The facts of this matter are as
follows. The applicant was arrested by members of the second respondent on
26 November 2011 on allegations of contravening s 136 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23]
(hereinafter referred to as “the Act”). He appeared in the Harare magistrate's
court on 29 November 2011 facing three counts of fraud, as defined in
s 136 of the Act, and two counts of theft, as defined in s 113 of the
Act. He was placed on remand and bail was denied.
His trial was finally set down for 28 May 2011 before a regional
magistrate. The State then dropped the fraud and theft charges and substituted
in their place a charge of contravening s 5(1)(a)(ii) of the Exchange
Control Act [Chapter 22:05] as
read with s 13(2) of the Exchange Control Regulations, 1996 (“the
Regulations”), that is, externalisation of property rights or patents without
the authority of the Reserve Bank of Zimbabwe (“the Reserve Bank”). The
applicant was notified of the new charge well before the trial date.
On 27 May 2013, a day before the trial was due to commence, the
applicant filed an application excepting to the charge. In this application the
applicant challenged the lawfulness of his arrest by members of the second
respondent. He submitted that members of the second respondent did not have
arresting powers. He also argued that his right to a fair hearing was infringed
by the State, in that he was previously charged with fraud and theft at his
initial appearance, charges which were totally different from the one he was
now facing at the trial but emanating from the same transaction. The
application excepting to the charge was found to be without merit and dismissed
by the magistrate on 28 June 2013. The trial then commenced.
On 24 July 2013 the applicant made yet another application to have
his matter referred to the Constitutional Court in terms of s 175(4)
of the Constitution of Zimbabwe (hereinafter referred to as “the
Constitution”). In the application for referral the applicant contended that
the dismissal of the exception violated his constitutional rights in the
following respects –
a) the
right to be informed promptly of the charge in sufficient detail to enable him
to answer it, in contravention of s 70(1)(b) of the Constitution;
b) the
right not to be convicted of an act or omission that was not an offence when it
took place, protected under s 70(1)(k) of the Constitution;
c) the
right to equal protection and benefit of the law, enshrined in s 56(1) of
the Constitution;
d) the
right to a fair and public hearing within a reasonable time before an
independent and impartial court, protected under s 69(1) of the
Constitution; and
e) the
right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of
all forms of property, either individually or in association with others, as
enshrined in s 71(2) of the Constitution.
The application for referral was also dismissed. The magistrate dismissed
the application on the grounds that it was a ploy to delay the trial. It would
appear the court a quo did not
apply its mind to the issue of whether or not the application was frivolous and
vexatious. This clearly was a misdirection.
The applicant now approaches this
Court in terms of s 85(1) of the Constitution. In my view, two issues fall
for determination by this court, namely
(1) Whether
or not the application is properly before this Court;
(2) If
the application is properly before this Court, whether or not the applicant has
established that his rights guaranteed by ss 70(1)(b), 70(1)(k), 56(1),
69(1)and 71(2) of the Constitution have been violated by the dismissal of his
application for exception to the charge.
Ms Fero,
for the first respondent, conceded that the matter was properly before the
Court and should be determined on the merits. The concession was made on the
basis that the learned trial magistrate had misdirected himself by dismissing
the application on the ground that it was a waste of time without applying his
mind as to whether or not the application was frivolous and vexatious.
The Court was satisfied that the first respondent's concession was
properly made and that this Court was at large to consider the merits of the
application.
I now turn to the second issue of
whether or not the applicant has established that his rights guaranteed under
ss 70(1)(b), 70(1)(k), 56(1), 69(1)and 71(2) of the Constitution were
violated.
Ms Fero,
for the first respondent, argued that the applicant did not come anywhere near establishing
any one of the grounds setting out the basis of the alleged violation of his
constitutional rights. She submitted that the first respondent had since
dropped the fraud and theft charges which the applicant was arrested for and
initially brought to court on. The applicant is only facing the charge of contravening s 5(1)(a)(ii) of the Exchange Control Act, as read
with s 13(2) of the Regulations, that is, externalisation of property rights
or patents without the permission of the Reserve Bank. It is common cause that
in April 2013 the applicant was advised of his trial date, being 28 May
2013. On 22 April 2013 State papers were served on the applicant,
informing him of the charge he was now facing under the Exchange Control Act
and Regulations.
A day before the trial date, the applicant filed an
application for exception, excepting to the charge on the basis that his arrest
was unlawful and that the outline of the State case did not disclose an
offence. The application was determined and dismissed by the fourth respondent.
It is the dismissal of that application which the applicant avers contravenes his
rights under ss 70(1)(b), 70(1)(k) and 70(2) of the Constitution.
The right protected under s 70(1)(b) of the Constitution
is twofold, namely –
(a) the
right to be informed promptly of the charge; and
(b) the right to be informed of the charge in sufficient detail
to enable a person to answer it.
The facts of this matter show that the
applicant was timeously informed of the charge he was facing, was given
sufficient details of the charge and given ample time to prepare his defence.
The applicant was given all the State papers that he needed to prepare for his
trial. In fact he was given all the information that the first respondent had
in its possession and intended to use against him at the trial. The applicant was
never denied access to any document or information that he intended to use in
defending himself.
I am accordingly satisfied that he was given
sufficient notice of the charge he was facing to enable him to answer the
charge. The charge which the applicant was facing emanated from the same set of
facts as that of the fraud and theft charges that were dropped. There was no
prejudice suffered by the applicant in the changing of the charge and notifying
him of the same. The applicant was given more than a month to prepare for his
trial, which is sufficient time for one to prepare for trial.
The applicant also failed to prove in what
manner his right to be informed promptly of the charge in sufficient detail was
infringed, so as to justify a permanent stay of the proceedings against
him.
The applicant's right to a speedy trial was not
in any way violated by the dismissal of the application for exception to the
charge. Neither was his right enshrined under 71(2) infringed. This ground of
the application cannot succeed.
The applicant also alleged that his right
enshrined in s 70(1)(k) of the Constitution had been infringed. In his
application it was never explained how this right had been infringed. The heads
of argument filed by Mr Mpofu failed
to substantiate this allegation.
Section 70(1)(k) of the Constitution
ensures that the State does not apply penal statutes with retroactive or
retrospective effect. In terms of this section, conduct in the form of an act
or omission that at the time it took place did not constitute an offence cannot
thereafter become an offence for which a person can be prosecuted and punished.
The acts
or omissions complained of in the State outline in this matter reveal that the
offence disclosed in s 5(1)(a)(ii) of the Exchange Control Act, as
read with s 13(2) of the Regulations, that is, externalisation of property
rights or patents without the authority of the Reserve Bank, was in existence
at the time the alleged offence was committed. The statutory provisions which
the applicant is alleged to have contravened did not come into existence after
the alleged conduct of the applicant.
Again, this ground of the
application for the permanent stay of criminal proceedings cannot succeed.
Ms Fero,
for the first respondent, argued that the matter should be referred back to the
regional magistrate's court for a continuation of the trial. She, however,
conceded that the proceedings should be set aside and the trial commenced de novo before a different regional
magistrate.
In my view, this concession is
properly made for the following two reasons –
First, the attitude of the fourth
respondent in this application reveals that the applicant may be justified in
fearing that he may not get a fair trial before the same magistrate. This
arises from the stance adopted by the trial magistrate to this application. A
trial magistrate should not oppose an application such as this one. He or she
should simply place before the court facts he or she believes will assist the
court in arriving at a correct decision and undertake to abide the decision of
the court. Opposing an application such as this one is likely to lead to the
perception by an accused person that he or she will not get a fair hearing from
a court that opposed his application.
Secondly, the trial magistrate has
concluded, in his ruling in respect of the application by the applicant's
co-accused and in a similar application by the applicant, that there was a need
to hear evidence on whether or not externalisation of copyrights and/or patents
without the authority of the Reserve Bank constitutes a contravention of
s 5(1)(a)(ii) of the Exchange Control Act, as read with s 13(2) of
the Regulations.
I have serious reservations
regarding the correctness of this conclusion. The law is the law. There is no
need to hear evidence to establish the law. In any trial, evidence is required
to establish facts and not the law. A trial court can hear submissions from
counsel on what the law is, but it cannot seek to hear evidence to determine
what the law is except in instances where the court seeks to establish foreign
law, in which case evidence on foreign law from experts is admissible.
In my view, after hearing
submissions by the parties, the learned magistrate should have determined
whether the facts alleged by the State constituted an offence or not. Failure
to make that determination could possibly lead to a violation of the
constitutional right of the applicant to protection of the law.
In the case of Williams and Anor v
Msipha N.O. and Ors SC 22/10 this Court held that putting an accused
on trial on facts which even if proved do not constitute an offence is a
violation of the right to protection of the law guaranteed by the Constitution.
In the result, the application for
stay of prosecution was dismissed, the proceedings set aside and a trial de novo was ordered in the event
that the Prosecuting Authority still wishes to proceed with the matter despite
the observations made herein.
MALABA DCJ: I
agree
ZIYAMBI JCC: I
agree
GWAUNZA JCC: I
agree
GARWE JCC: I
agree
GOWORA JCC: I
agree
HLATSHWAYO JCC: I
agree
GUVAVA JCC: I
agree
MAVANGIRA AJCC: I
agree
Tamuka Moyo Attorneys, applicant's legal
practitioners
National Prosecuting Authority, for the
first respondent
T H
Chitapi & Associates,
third respondent's legal practitioners
