CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA,
GOWORA JA, HLATSHWAYO JA, PATEL JA, GUVAVA JA,
HARARE, FEBRUARY 19, 2014 & FEBRUARY 17, 2015
W. Bherebende, for the applicant
T. Mapfuwa, for the respondent
GUVAVA JA: This is an application referred to this Court in terms of s 24 (2) of the old Constitution. The applicant seeks an order for a permanent stay of his prosecution on the basis that his rights in terms of s 18 (1) and (2) of the old Constitution have been violated owing to the delay in finalising his trial.
The facts which gave rise to this application are these. On 18 April 2005 the applicant attended the Independence Day Celebrations at a farm homestead in Featherstone. At around 14.00 hours of the same day the applicant had a misunderstanding with the deceased, Wilbert Mapurisa, concerning contributions towards the Independence Day celebrations. At about 19.00 hours, the applicant approached the deceased where he was seated and eating some food. Without saying anything to him he suddenly attacked him. He kicked him on his back and stomach several times. The deceased fell to the ground, started vomiting and became unconscious.
The deceased was carried into one of the rooms at the homestead by people who were attending the celebrations. They rendered some first aid and he regained consciousness during the night. On the following day at about 07.00 hours the deceased was ferried to St Michael’s hospital in Mamina for treatment where he was admitted due to the seriousness of his condition. On 21 April the deceased died.
A post mortem examination was conducted and the doctor found that the death was caused by severe peritonitis, perforated colon and blunt trauma consistent with a kick. The applicant was arrested and charged with the crime of murder on 21 April 2005 and placed on remand at Chivhu Magistrates Court. He was granted bail after spending twenty days in custody.
On 4 April 2006 the murder charge was reduced to culpable homicide. The Attorney General’s Office directed that the matter be tried before a Regional Magistrate at Chitungwiza Magistrates Court as there was no regional court at Chivhu. The trial failed to commence on a number of occasions. On 9 February 2009, when the matter was set down for trial, the applicant made an application for the matter to be referred to the Supreme Court in terms of s 24 (2) of the old Constitution on the basis that there had been an inordinate delay in finalising the trial. The applicant sought the following relief:-
“1. A declaration that the respondent had failed to prosecute the matter against him timeously and within a reasonable period in violation of his right as set out in section 18(2) of the Constitution of Zimbabwe.
2. An order that the prosecution of the applicant by the respondent be stayed permanently.”
The trial magistrate determined that the application had merit and duly referred the matter to this Court.