1.     THE     HONOURABLE     MAGISTRATE     MAHWE     N.O     (2)     THE     ATTORNEY     GENERAL     OF     ZIMBABWE





HARARE, MAY 16 2013, & DECEMBER 4 2014

T. Mpofu, for the applicant

J. Uladi, for the respondents


GARWE JA: In this application, the applicant seeks the following relief:-

- A declaration that the refusal by the Magistrate to refer the issues raised by the applicant to the Supreme Court is wrong at law and consequently a breach of the applicant’s right to the protection of the law enshrined in section 18(1) of the former Constitution of Zimbabwe.

- A declaration that the decision by the Attorney-General to proceed with the prosecution of the applicant more than five years after the alleged commission of the offence is a violation of the applicant’s right to the protection of the law under section 18 of the former Constitution.

- A declaration that the present application is properly before the Supreme Court.

- An order that, the prosecution of the applicant being a violation of her right under section 18, such prosecution be and is hereby permanently stayed.

- An order that the respondents pay the costs of this application.


THE BACKGROUND                   

The applicant and one Cecil Rhaniel Chengetai Muderede (“Muderede”) were engaged in an intimate relationship until about 2005 when the relationship came to an end.  At the centre of the dispute giving rise to the present proceedings are two properties.  The first is Number 4 Goodall Avenue, Emerald Hill, Harare registered in the name of Helce Enterprises (Pvt) Ltd, a company incorporated according to the laws of Zimbabwe.  It is common cause that, from the time of its incorporation, the applicant’s name appeared on the official records of the company as one of the two directors of the company.  The second property is Number 106 Lomagundi Road, Avondale, registered in the name of another company, Drisdane Investments (Pvt) Limited.  It is not in dispute that it was Muderede who purchased this property. 

In May 2004 Muderede was specified under the Prevention of Corruption Act [Cap 9:16].  Following this development, the applicant proceeded to the offices of the Registrar of Companies where, using the specification of Muderede, she was able to remove the name of Muderede as a director of Helce Enterprises and in his place had the names of her brothers, Kumbirai Matiashe and Kudzai Matiashe, substituted as directors.  On the strength of a board resolution passed by the new board, the applicant was able to obtain a duplicate copy of the deed of transfer for number 4, Goodall Avenue, Emerald Hill.  The applicant was able, using the same modus operandi, to get another duplicate copy of the title deeds for Number 106 Lomagundi Road, Avondale.

On 7 June 2007 Muderede filed a complaint of fraud against the applicant with the police.  The allegation on both counts was that the applicant had misrepresented that Muderede had resigned as a director of Helce Enterprises (Private) Limited and Drisdane Investments (Private) Limited and in his place had appointed her two brothers, Kundai Matiashe and Kumbirai Matiashe.  It was alleged that on the basis of the misrepresentation, the applicant managed to get duplicate title deeds for both properties.

On 25 June 2007, the applicant made a statement to the police.  She was thereafter placed on remand.  On 26 February 2008 the charges against the applicant were withdrawn by the State.  However on 17 July 2012 the applicant was served with summons to appear in court on 6 August 2012.  On 21 August 2012 the applicant then filed an application in the Magistrates Court seeking a declaration that the decision by the Attorney-General to try her after six years violated her right to the protection of the law enshrined in s 18 of the Constitution and that the matter be referred to the Supreme court in terms of s 24(2) of the former Constitution.

In papers filed before the Magistrates Court, the appellant stated that the delay of six years during which no trial had taken place was wholly attributable to the State.  She had always been available to attend court to answer any allegations.  Further she stated that one of her defence witnesses, Doctor Iris Sarupinda, who was present during the time she had a relationship with Muderede, had relocated to Europe and she was not aware of her present whereabouts.  The appellant did not give oral evidence in support of her application.

In the Magistrates Court it was not in dispute that on 24 July 2009 and 2 November 2010 the applicant filed a complaint with the police against Muderede and his wife Michelle.  In the complaint she alleged that the two had fraudulently used the title deeds for the two properties to secure mortgage loans in favour of Shankuru Estates.  She also complained that a Mr Magwere, from the office of the Registrar of Deeds, a Mr Shadreck Beni from Metropolitan Bank and one Mujokoro, a legal practitioner, had colluded with Muderede and his wife in the fraudulent registration of the mortgage bonds over the two properties.

The State opposed the application for referral of the matter to this Court and led evidence from the Investigating Officer, Detective Inspector Charles Chirove.  The Investigating Officer told the court that a number of factors had contributed to the delay in the prosecution of the matter.  In 2008 and 2009 the country experienced a severe economic meltdown which affected the ability of the police to carry out its functions.  At one stage the police received reports that Muderede was in South Africa.  Because Muderede could not be located the charges against the applicant were withdrawn.  Thereafter in 2009 and 2010 the applicant filed reports with the police based on the same facts against Muderede, his wife and other persons resulting in the arrest of Muderede on fraud charges.  When both cases were sent to court, Muderede queried why his complaint, which had been filed earlier, was being overtaken by the complaint filed later by the applicant.  Muderede even approached the Anti- Corruption Commission alleging that the police were giving the applicant preferential treatment.  The applicant also harassed the police and even made complaints to Police General Headquarters against the witness and several of his fellow officers.  She was saying she wanted to be consulted before the police made any decision on this matter.  He told the court he formed the opinion that the applicant was throwing spanners into the works to ensure that the matter went nowhere.  In an effort to make some progress the State then reached an agreement with the applicant and Muderede that the case in which Muderede was an accused was to be tried first.  In the event that Muderede was convicted, then the case in which he was complainant would die a natural death.  However in the event that he was acquitted, then the case in which applicant was an accused would then commence.  As it so happened, Muderede was acquitted in 2012 as a result of which applicant was then summoned to appear in court.  It was his evidence that it was the applicant who was largely to blame for the delay.

The Magistrates court was of the view that since the applicant had participated in the agreement which had contributed to the delay she cannot now be heard to complain.  On that basis the court found the application to be frivolous and vexatious.  The court further found that the application was an attempt to further delay the proceedings.  The court therefore dismissed the application.  Following that decision the applicant filed the present application in terms of s 24(1) of the former constitution.


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