(1) LOVEMORE ITAI MUKANDI (2) NELSON SILVERN YEUKAI MAWERE MUBVUMBI
(3) DAVID NYABONDO (4) MOHAMED AHMED MEMAN
CONSTITUTIONAL COURT OF ZIMBABWE
MALABA DCJ, ZIYAMBI JA, GWAUNZA JA,
GARWE JA, GOWORA JA, HLATSHWAYO JA,
PATEL JA, GUVAVA JA & CHIWESHE AJA
HARARE, SEPTEMBER 18, 2013, & SEPTEMBER 25, 2014
J B Wood for the first, second and third applicants
T R Nyanyiwa for the fourth applicant
S Fero for the respondent
GOWORA JA: The applicants in this matter are seeking an order for the permanent stay of their prosecution on charges of fraud. They allege their constitutional right to a fair trial within a reasonable period, guaranteed under s 18(2) of the former Constitution, has been violated by reason of the inordinate delay by the State to bring them to trial.
The first applicant, Lovemore Itai Mukandi, (“Mukandi”), the second applicant, Nelson Silvern Yeukai Mawere-Mubvumbi (“Mubvumbi”) and the applicant David Nyabondo (“Nyabondo”) were formerly employed by the Central Intelligence Organisation. Mukandi was the Deputy Director of Administration, Mubvumbi was the Chief Transport Officer and Nyabando the Chief Administration Officer. The fourth applicant Mohamed Ahmed Meman (“Meman”) was a director and shareholder in African Timber and Builder Suppliers (Pvt) Ltd.
The applicants were arraigned before the Magistrates Court sitting at Harare on 15 March 1999 for allegedly contravening s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], fraud, alternatively, contravening s 3 (1)(f) of the Prevention of Corruption Act [Chapter 9:16]. The allegations against the applicants were the following. Mukandi was tasked with the responsibility to arrange for the construction of houses for the organisation. He co-opted Mubvumbi and Nyabando to assist him with the project. Meman was requested to submit a quotation for the construction of the houses without submitting to government tender procedures. African Timber and Builder Suppliers submitted a quotation for the sum of Z$16 106 559. Meman subcontracted the project to Direct Line Electrical Services and Sale (Pvt) Ltd, a company in which Mubvumbi was the beneficial shareholder. It was alleged that the four applicants misrepresented to the organisation that the costs of construction had escalated by the sum of Z$16 773 784.32 which the applicants are alleged to have shared.
At their initial appearance in court, the applicants were granted bail and remanded to June 1999. Thereafter they were remanded to September 1999 and 31 January 2000 at the request of the State. On 31 January 2000 the applicants were removed from remand after the State indicated that it required more time to prepare its case. The State was advised if need be to proceed by way of summons against the applicants.
No further action was taken by the State to bring the applicants to court and on 31 July 2001 the first applicant left the country for Canada. The other three (3) remained in the country. On 21 September 2011 the Canadian authorities deported the first applicant to Zimbabwe. Following his arrival, the State proceeded to serve summons on all the applicants, starting with the first applicant on 28 September 2011. The second and third applicants were served on 29 November 2011 with the fourth applicant being served last on 2 December 2011. In terms of the summons, the applicants were to be tried on 15 December 2011.
On the scheduled date the trial failed to take off yet again. The reason given by the State was that the docket and the record could not be located. The matter was further remanded to 9 January 2012. Again, for reasons not specified by any of the parties, the trial failed to start and the matter was remanded to 17 January 2012, on which occasion the applicants applied for referral of the matter to this Court.