RESIDENT MAGISTRATE (KADOMA) N.O
THE PROSECUTOR GENERAL N.O
HIGH COURT OF ZIMBABWE
HARARE, 8 March and 11 April 2018
N. Mugiya, for the applicant
F.I. Nyahunzvi, for the 2nd respondent
MUSAKWA J: In this application the applicant seeks permanent stay of prosecution of charges preferred against him in 2016.
The applicant was summoned to court on three counts of violating the Road Traffic Act [Chapter 13:11]. The first such appearance was 7 January 2016. Trial did not commence. According to the applicant trial has failed to commence despite appearing before the court on numerous occasions. This is because witnesses would not attend. The applicant avers that every time he was summoned to court he would be told to go back home and await further summons. Thus according to the applicant there has been an unreasonable delay in his prosecution and this has resulted in prejudice.
The second respondent contends that the matter is not properly before the court. According to the second respondent, the matter should have been referred by the lower court.
In his submissions Mr Mugiya argued that it is not correct that the application should have been made in the lower court. He pointed out that s 167A of the Criminal Procedure and Evidence Act [Chapter 9:07] allows a party to apply for permanent stay of prosecution. Mr Mugiya further submitted that in the present case a record of proceedings was not even opened in the lower court. As to why this was not so, he submitted that this is because there were no witnesses. He further submitted that it is not the magistrate but prosecutor who initiates the opening of a record. In this respect he referred to s 140 of the Criminal Procedure and Evidence Act.