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 & MARCH 9, 2015
J. Mambara, for the applicant
S. Fero, for the respondent
PATEL JA: The applicant in this matter seeks a permanent stay of prosecution in respect of a charge that arose more than 8 years ago. He claims that his right to a fair trial within a reasonable time, as enshrined in s 18(2) of the former Constitution, has been violated.
The applicant was arrested in November 2005 on a charge of converting to his own use a sum of ZW$760,000,000.00 that was given to him by the complainant to purchase 30,000 litres of diesel and 8,000 litres of petrol. According to the submissions filed on his behalf before the Magistrates Court on 27 June 2011, he was detained but later released and then arrested again in November 2007. At the end of 2008 he was taken off remand because the State was not ready to proceed. Following his further arrest in May 2011, he was summoned to appear in court on 20 June 2011, when he gave notice of his intention to apply for the matter to be referred to the Supreme Court in terms of s 24(2) of the former Constitution. The matter was then so referred by the Magistrates Court sitting at Harare on 8 July 2011.
It is averred on behalf of the applicant that the inordinate delay of 6 years in bringing the matter to trial was due to the State’s lack of preparedness. It is also averred that he has been prejudiced by the passage of time, the inflation of the Zimbabwe Dollar and the subsequent changeover to the United States Dollar.
The State opposed the application for referral on the grounds set out in its response filed before the magistrate on 6 July 2011. It further opposed the request for permanent stay of proceedings in its heads of argument before this Court. In essence, it is averred that the matter is not properly before this Court because it consists only of the submissions filed in the Magistrates Court. There was no affidavit or evidence adduced in that court, nor was any hearing conducted before it, to enable the magistrate to determine whether or not the application was frivolous or vexatious. Additionally, no documentation was attached to the application to support the applicant’s averments as to what transpired between 2005 and 2011. Consequently, neither the prosecutor nor the magistrate could test the veracity of the applicant’s allegations. It is further argued for the respondent that this Court is handicapped by the lack of evidence in making a full inquiry into and determining whether or not the applicant’s right to a fair trial has been violated.