Court name
Bulawayo High Court
Case number
HC 1780 of 2002
Case name
S v Ncube and Ors
Law report citations
Media neutral citation
[2002] ZWBHC 95

                                                                                    Judgment No. HB 95/2002

                                                                                    Case No. HC 1780/2002

 

FLETCHER DULINI NCUBE

 

and

 

SONY NICHOLAS MASARA

 

and

 

ARMY ZULU

 

versus

 

THE STATE

 

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 31 JULY and 1 AUGUST 2002

 

Adv. Andersonfor the applicants

Mrs M Moya-Matshangafor the respondent

 

Judgment

 

            CHIWESHE J:          On 16 July 2002 applicants sought and obtained a

 

provisional order calling upon the respondent to show cause why a final order should

 

not be made as follows:

 

            “1.       The indictment in the above matter be struck off;

            2.         The applicants be removed from remand.”

 

            By way of interim relief the following order was granted:

 

            “Pending determination of this matter the applicant is granted the following

 

            relief:

 

            (a)        the indictment of the applicants be postponed until this court has made                   a determination with regard the present matter.

            (b)        respondent be and is hereby ordered to show cause why applicants                                     should not be removed from remand.

            (c)        respondent be and is hereby ordered to file its answering papers on or                     before 12 noon of 17 July 2002 and applicants are granted leave to set              the matter down within 48 hours thereafter.”

 

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                                                            -2-

 

            The background facts to this application are as follows.  Applicant and

 

co-accused persons face charges of murder.  They were arrested in November 2001. 

 

They are all on bail pending trial in the High Court.  They have been on remand since

 

the time of their arrest.

 

            According to the respondents (and this has not been challenged) their

 

Bulawayo office received instructions from the Attorney-General’s office in Harare

 

that the applicants be indicted to the High Court in Harare.  A letter was then written

 

to the Clerk of Court (Criminal) requesting him to issue summons against the

 

applicants in terms of section 110 (3)(a) of the Criminal Procedure and Evidence Act

 

[Chapter 9:07].  The letter was copied to applicant’s legal practitioners.  In terms of

 

the summons issued, the applicants were required to be in court 2, Tredgold

 

Magistrates’ Court at 8.30a.m on 12 July 2002.  The summons were not served as the

 

police were unable to locate applicants.  Warrants were then issued in terms of section

 

110 (3)(b) of the Criminal Procedure and Evidence Act.  When the police sought to

 

uplift the warrants they were informed that the magistrate had cancelled the warrants

 

in chambers.  It was then agreed between the respondent and applicants’ legal

 

practitioners that the applicants be brought (by their legal practitioners) on 15 July

 

2002 for indictment.  Applicants’ legal practitioners duly brought the applicants late

 

in the afternoon of that date.  They served respondents with a chamber application

 

seeking to bar respondent from indicting the applicants.  A provisional order was

 

granted on the basis of those papers on 16 July 2002.  It was granted “ex parte”.  The

 

reasons for that decision were given under the hand of my brother KAMOCHAJ in

 

judgment number HB-80-2002 and are stated as follows:

 

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            “The legal practitioners indicated that they had discussed the issue of making        an application in court to have the applicants removed from the remand with   the Attorney-General’s Office but it (the Attorney-General’s Office) did not            seem to want to have an application brought to court.  They then ended up             deciding to make this application for a provisional order to compel the state to come and argue the matter in court.  They went on to say they had already      served the papers on the Attorney-General’s Office.  It was on that basis that         the provisional order was granted.”

 

            With respect, the correctness of that decision is doubtful moreso because it is

 

not based on the merits of the case before the court but on the assumption that the

 

Attorney-General’s Office would not attend court unless the provisional order was

 

granted.  In my view the issues canvassed in the application are neither new nor

 

urgent. I do not consider therefore this matter to be an appropriate case in which an ex

 

partejudgment (even on a provisional basis) should have been granted.  In terms of

 

the merits of the matter no assistance is derived from that judgment regarding

 

confirmation or otherwise of the provisional order.

 

            In their heads of argument applicants contend that the state has not disclosed

 

any admissible evidence to link them with the offence.  “The sole basis on which it is

 

alleged that they were implicated consists of alleged confessions by other persons

 

sought to be indicted with them as co-accused in which they are alleged to have been

 

implicated.”

 

            It is further argued that whilst the Attorney-General has the power to prosecute

 

he is only entitled to exercise that power in accordance with sections 18 and 13 of the

 

Constitution (that is where admissible evidence is disclosed on which the court may

 

objectively find the existence of a reasonable suspicion that the offence charged has

 

been committed and that the accused should stand trial).

 

                                                                                               

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            According to applicants the indictment papers which are before this court do

 

not allege any evidence against the applicants save for the alleged confessions by

 

their co-accused after their arrest - these are not admissible against applicants.

 

            On their part respondents argue that the application should be dismissed

 

because it has no basis in law.  They aver that the application is frivolous and

 

vexatious and goes against the provisions of section 76 subsection 4(a) of the

 

Constitution as well as section 110 of the Criminal Procedure and Evidence Act. They

 

argue that the application seeks to usurp the powers of the Attorney-General.

 

            Subsection 4(a) of section 76 of the Constitution of Zimbabwe reads:

 

            “(4)      The Attorney-General shall have power in any case, in which he                              considers it desirable so to do -

                        (a)        to institute and undertake criminal proceedings before any court                              ... and to prosecute or defend an appeal from any determination                                 in such proceedings.”

           

            And subsection (7) of that section provides:

 

            “(7)      In the exercise of his powers under subsection (4) or (4)(a) the                                 Attorney-General shall not be subject to the direction or control of any                        person or authority.”

 

            The applicants rely on section 13 of the constitution of Zimbabwe for the

 

proposition that the Attorney-General can only exercise the powers bestowed upon

 

him subject to the limitations imposed by that section, and in this case, in particular

 

subsection (2)(e) of that section.

 

            Section 13(1) and (2) reads:

 

            “13      Protection of right to personal liberty

                        (1)        No person shall be deprived of his personal liberty save as may                                be authorised by law in any of the cases specified in subsection                                    (2).

                        (2)        The cases referred to in subsection (1) are where a person is                                     deprived of his personal liberty as may be authorised by law -

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                                                            -5-

 

                                    (a)        ...

                                    (b)        ...

                                    (c)        ...

                                    (d)       ...

                                    (e)        upon reasonable suspicion of his having committed or                                              being about to commit a criminal offence.

                                    (f)        ...

                                    (g)        ...

                                    (h)        ...

                                    (i)         ...”

 

            Section 18(1) of the constitution of Zimbabwe upon which the applicants rely

 

states:

 

            “18      Provisions to secure protection of the law

                        (1)        Subject to the provisions of this Constitution, every person is                                   entitled to the protection of the law.”

 

            Whilst I agree with the respondents that the prerogative in deciding to

 

prosecute any criminal matter rests with the Attorney-General (subject to the

 

provisions relating to private prosecution) I would also agree with the applicants that

 

in exercising his discretion in that regard the Attorney -General must do so judiciously

 

and in accordance with the law.  That power cannot be exercised outside the

 

parameters of the law nor in an arbitrary manner.

           

            The main thrust of this application is the contention by applicants that there

 

are no grounds giving rise to a reasonable suspicion that they committed the offence in

 

regard to which they have been in remand and in respect of which they stand to be

 

indicted.

 

In the case of Martin v A-G and Another 1993(1) ZLR 153 at 159 it was held thus:

 

            “It is the entitlement of every individual to challenge the power and right of          the state to place him on remand.  This he does upon a submission that            insufficient facts have been alleged to enable the court to objectively find the     existence of a reasonable suspicion of his having committed or being about to

 

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            commit a criminal offence, thereby justifying the deprivation of his personal

            liberty under section 13(2)(e) of the constitution.  He may adduce evidence, as      the applicant did, designed to demolish, clarify or weaken the facts alleged by            the state.  The test to be applied is the same as that for arrest without warrant.           It does not require the firm resolution of conflicting evidence that guilt beyond             a reasonable doubt demands, nor even a preponderance of probability.        Certainty as to the truth is not involved, for otherwise it ceases to become   suspicion and becomes fact.  Suspicion, by definition, is a state of conjecture        or surmise whereof proof is lacking.”

 

            In so holding GUBBAY CJ  reiterated the point made in the

 

case of Attorney-General v Blumears and Another 1991(1) ZLR 118 (S) at 123 A-B. 

 

(See also Bull v Attorney-General and Another 1986(1) ZLR 117 (S)).

 

            That the requirements and test for the existence of a reasonable suspicion that

 

an accused person has committed or is about to commit an offence is as enunciated in

 

the above cases admits of no doubt.  Whilst there is ample authority in this regard

 

concerning arrests without warrant, detention, remand and bail applications, I am

 

unable to find, nor are the parties able to refer me to any authority in which an

 

indictment was stopped on the grounds that no reasonable suspicion exists that an

 

offence has been committed.

 

            Applicants argue that the same considerations would nonetheless apply in

 

relation to an indictment - in fact the same considerations apply throughout the

 

pre-trial stage, including indictment.  I tend to agree with Adv. Anderson’s

 

submissions in that regard.  It appears to me that the reason why there is a dearth of

 

authorities at the indictment stage is probably due to ignorance on the part of

 

unrepresented accused persons or where the accused person is legally represented,

 

such issues would have been canvassed at an earlier stage, particularly at the remand

 

stage.  Assuming that an indictment can be challenged on the same basis and that the

 

                                                                                                            95/02  

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test for the existence of a reasonable suspicion would be the same as laid down in the

 

above cited cases, then this application cannot succeed.  The state is not required to

 

prove its case at this stage, not even on a balance of probabilities.  All it needs do at

 

this stage is demonstrate that on the facts alleged a reasonable suspicion arises that

 

an offence has been committed. The test is the same as that for arrest without warrant. 

 

Suspicion has been described in the Martin case supra as “a state of conjecture or

 

surmise whereof proof is lacking”  The admissibility or otherwise of any facts or

 

evidence that the state may seek to establish or adduce is not a factor for consideration

 

at this stage.  Applicants seek a ruling on the basis that whatever evidence the state

 

may have in the form of confessions by co-accused in which applicants are implicated

 

would ordinarily be inadmissible as against applicants and therefore no reasonable

 

suspicion could be held to exist that the applicants committed an offence.  With

 

respect, that would amount to an unjustifiable extension of the test to be applied.

 

            In my view such issues stand for determination by the trial court.  Suffice it to

 

say that where an accused person implicates another in circumstances such as the

 

present, that would be sufficient grounds for holding that a reasonable suspicion exists

 

that an offence has been committed by such other.  On that basis an arrest is

 

justifiable.  The accused person may be placed on remand on the same basis and

 

indicted if needs be.

 

            Reliance has been placed by applicants on the following cases:

            Attorney-General v Moyo SC 33-02

            Spooner v The State HB-51-01

            Moyo and Another v The State HB 26-02

 

 

 

 

                                                                                                                        95/02

                                                            -8-       

 

            In these cases what was under consideration was the question of admission to

 

bail.  The admissibility or otherwise of co-accused’s extra curial statements was

 

considered for purposes of bail.  I do not consider those cases relevant to the present

 

applicant.  My attention has also been drawn to the provisions of sections 178 and 179

 

of the Criminal Procedure and Evidence Act.  Again those provisions in my view have

 

no direct bearing on the present applicant.

 

            Applicants have been on remand for close to nine months now.  At no stage

 

during that period did they apply to be removed from remand even though they knew

 

or ought to have known the facts upon which the state relied for placing them on

 

remand.  Those facts do not appear to have changed.  It was only after the state

 

indicated its intention to indict them that the present application was made (on an

 

urgent basis).  I can only conclude that the application is made solely for purposes of

 

defeating the process of indictment.  In any event I have already concluded that on

 

the merits the application cannot succeed.

 

            It is ordered that the provisional order be and is hereby discharged with costs.

 

 

 

 

 

 

Webb, Low & Barryapplicants’ legal practitioners

Attorney-General’s Officerespondent’s legal practitioners