CCZ 13-15 - MUTSINZE vs THE ATTORNEY GENERAL, ZIMBABWE

JONATHAN     MUTSINZE

v

THE     ATTORNEY     GENERAL,     ZIMBABWE

 

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,

GWAUNZA JCC, GARWE JCC, GOWORA JCC,

HLATSHWAYO JCC, PATEL JCC et GUVAVA JCC

HARARE, JANUARY 22, MARCH 14,

SEPTEMBER 24 & OCTOBER 1, 2014

 

T. T G Musarurwa with him A Mombasasa, for the applicant

E Nyazamba,for the respondent                                                                  

GARWE JCC:

[1]      After considering the papers filed of record and hearing counsel, this Court issued the following order:

                        “It is ordered that:

- The application for the trial of the applicant in case number CRB 8/2000 to be permanently stayed be and is hereby dismissed.

- The matter is remitted to the trial judge at the High Court, Harare, for the reconstruction of the missing record, to include the reasons for conviction, proceedings and findings on the question of extenuation and thereafter for him to pass sentence.

- The reasons for this order will follow in due course.

- There be no order as to costs.”

[2]      What follows are the reasons for the above order.

[3]      Owing to the long and tortuous journey that this matter has trudged, it is necessary to set out the background in some detail, as such background explains, to a large extent, why this Court issued the above order.

FACTUAL BACKGROUND

[4]      In August 1998, the applicant and two other co-accused were arrested on allegations of murder and armed robbery committed at Chiwaridzo Bottle Store located at Chipadze Township, Bindura.  They were placed on remand. Their application for bail was dismissed.  The applicant has been in custody since then.

[5]      The criminal trial commenced sometime in September 2001 before Justice Hungwe and two assessors.  The applicant, who was legally represented by pro deo counsel, initially Mr Julian Colegrave and thereafter Mr Makuyana, pleaded not guilty to two counts of murder.  He however admitted taking part in the robbery in the company of two others, one of whom was armed.  Evidence was led by both the State and defence.  The defence case was closed on a date not known but either in 2003 or 2004.

[6]      In July 2013, the applicant filed the present application seeking a permanent stay of the criminal proceedings instituted against him and, as a corollary, an order releasing him forthwith from custody.  He alleged that the failure by the State to complete his trial, ten years after the closure of the State case and fifteen years after his arrest, constituted a violation of his rights enshrined in s 50 and s 69 of the current Constitution.

PROCEEDINGS BEFORE THIS COURT

[7]      In his founding affidavit, the applicant averred that the record of the proceedings had gone missing together with the transcript of the proceedings.  Attempts to reconstruct the record by the Registrar were unsuccessful.

[8]      Owing to the lengthy delay in the finalisation of his trial, the fact that the record of the proceedings had gone missing and the prejudice that he stands to suffer were a trial de novo to take place, he prayed for an order permanently staying the criminal proceedings against him.

[9]      On 22 January 2014, this Court sat to hear submissions on the application.  The State advised the Court that it had not been possible to obtain an affidavit from the Registrar of the High Court explaining the status of the record of proceedings.  By consent of both parties, the matter was postponed sine die and an order made for the Registrar of the High Court to file an affidavit, within thirty days, to clarify the status of the record and, if lost, the effort made to reconstruct the record.  The Court also ordered the trial judge to furnish, through affidavit, the reasons for the delay in the finalisation of the matter.

[10]    In response thereto, the Acting Registrar of the High Court of Zimbabwe advised, by affidavit, that the record as transcribed and the judge’s note books had gone missing.  The cassette tapes used to record the proceedings had been erased after the transcription and re-used in other cases.  Whilst a number of documents had been availed to assist in the reconstruction, the record on the evidence led was not available.

[11]      In his response, the trial judge, also by affidavit, stated that after the closure of the defence case and the hearing of closing arguments, he convicted the applicant on two counts of murder and one of robbery.  One of the three accuseds had passed on before judgment.  He acquitted the remaining accused.  After hearing submissions on the question of extenuation, he made a finding that were no such circumstances as both counts of murder had been committed in cold blood and in the course of a planned robbery.  On the record of the proceedings which has gone missing, he expressed the view, without substantiation, that the circumstances suggested collusion between the applicant and officers at the High Court to ensure that the matter was not concluded.

[12]       The applicant, exasperated by what he considered were unfounded allegations made by the trial judge against him, in a supplementary affidavit, denied that he had ever been convicted and that the proceedings had been postponed so that sentence could be pronounced.  He stated that nothing further had happened after the closure of the defence case.  He denied the suggestion that he may have had anything to do with the disappearance of the record of the proceedings, citing lack of capacity on his part, owing to the fact that he has always been in custody.

[13]         The matter was again set down before this Court on 12 March 2014.  It became clear from the submissions made during that hearing that there was a dispute as to how far the matter had gone and whether it was still possible for the record of the proceedings to be reconstructed.  The State however advised the Court that, at a meeting attended by both sides in the trial judge’s chambers, the latter had indicated that he was able to reconstruct the record of proceedings using notes provided by the prosecution.  Following this revelation, this Court again postponed the matter and issued another order directing the Registrar of the High Court to attend to the reconstruction of the record, within thirty (30) days, with the assistance of both the State and Defence counsel, the assessors and other officials who had a role to play in the criminal proceedings.

2015

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