Court name
Supreme Court of Zimbabwe
Case number
SC 67 of 2004
Const. Application 66 of 2004

In Re: Hativagone v Jirivengwa (66/04) (SC 67 of 2004, Const. Application 66 of 2004) [2004] ZWSC 67 (09 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 67
















REPORTABLE
ZLR (49)


Judgment
No. SC 67/04


Const.
Application No. 66/04








IN RE:
(1) WELLBORN HATIVAGONE





(2)
WILFORD JIRIVENGWA








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA, ZIYAMBI JA, MALABA JA & GWAUNZA  JA


HARARE,
JUNE 10 & SEPTEMBER 10, 2004








P
Kwenda
, for the first
applicant





N Chikono,
for the second applicant





V
Shava
, for the
Attorney-General





SANDURA  JA:
At the request of counsel for the applicants, this matter was
referred to this Court by a regional magistrate
in terms of s 24(2)
of the Constitution of Zimbabwe (“the Constitution”), which reads
as follows:





“If
in any proceedings in the High Court or in any court subordinate to
the High Court any question arises as to the contravention
of the
Declaration of Rights, the person presiding in that court may, and if
so requested by any party to the proceedings shall,
refer the
question to the Supreme Court unless, in his opinion, the raising of
the question is merely frivolous or vexatious.”





The
specific question referred for determination by this Court is whether
the prosecution of the applicants for fraud should not
be permanently
stayed on the ground that their right to a fair trial within a
reasonable time, enshrined in s 18(2) of the Constitution,
had
been violated.





The
relevant factual background upon which the applicants based their
contentions may be tabulated conveniently as follows –






1. At the relevant time the first
applicant (“Hativagone”) was the managing director of five
companies (“the companies”),
and the second applicant
(“Jirivengwa”) was an executive officer in the accounts section
of the Central Mechanical Equipment
Department in the Ministry of
Transport (“the C.M.E.D.”).







2. On 24 December 1997
Hativagone received from the C.M.E.D. five cheques totalling
$2 796 336.33, allegedly for goods
supplied or services
rendered by the companies to the C.M.E.D..







3. On 16 April 1998
Hativagone was arrested and formally charged with five counts of
fraud, the allegations being that in December
1997 he and Jirivengwa
had unlawfully and with intent to defraud misrepresented to the
C.M.E.D. that the companies had supplied goods
or rendered services
to the C.M.E.D., and that as a result of that misrepresentation the
C.M.E.D. had issued five cheques payable
to the companies totalling
$2 796 336.33 for goods which had not been supplied or
services which had not been rendered
to it.





On
the same day, Hativagone made a warned and cautioned statement in
which he denied the charges. When asked whether he could
produce
the relevant documents showing the goods supplied or the services
rendered to the C.M.E.D. by the companies, he said:






“The
policy in my group of companies is to get rid of documents once a
transaction has been finalised. Although at this stage I do
not
know specifically whether these were destroyed, I shall check and
produce them if they are available.”






However,
the required documents were never produced.






4. On 20 April 1998
Hativagone was taken to the magistrate's court and was placed on
remand.







5. On 14 December 1998
Jirivengwa was arrested and on the same day was taken to the
magistrate's court for the initial remand,
having made a warned and
cautioned statement in which he denied all the five counts of fraud.







6. On 18 February 1999 the
charges against Hativagone were withdrawn before plea, and thereafter
in September 1999 the charges
against Jirivengwa were also withdrawn
before plea. Hativagone had, therefore, been on remand for about
ten months, and Jirivengwa
for about nine months.







7. However, on 31 July 2003
the charges were resurrected and the applicants’ trial was set down
to commence on 27 October
2003 in the regional magistrate's
court. The trial date was later altered by consent to 17 November
2003, and the applicants
were issued with summonses directing them to
appear in the regional magistrate's court on that date.







8. On 28 October 2003
counsel for the applicants notified the public prosecutor that on
17 November 2003 the presiding regional
magistrate would be
requested, in terms of s 24(2) of the Constitution, to refer the
matter to this Court in order for the Court
to determine whether the
prosecution of the applicants for fraud should not be permanently
stayed.







9. On 17 November 2003,
after the applicants had pleaded not guilty to the charges, counsel
for the applicants requested the
presiding regional magistrate to
refer the matter to this Court, as previously indicated. Both
applicants gave evidence in support
of that request and were
cross-examined by the public prosecutor. Thereafter, the presiding
regional magistrate referred the matter
to this Court, the public
prosecutor having conceded that the raising of the constitutional
question was not merely frivolous or
vexatious.





Section 18(2)
of the Constitution, which the applicants relied upon, reads as
follows:





“If
any person is charged with a criminal offence, then, unless the
charge is withdrawn, the case shall be afforded a fair hearing
within
a reasonable time by an independent and impartial court established
by law.”






The factors which must be
considered in the determination of whether an accused person has been
afforded a fair hearing within a
reasonable time were identified by
JUSTICE POWELL in
Barker
v Wingo
407 US 514
(1972) at 530-532 as follows:





“The
length of the delay is to some extent a triggering mechanism. Until
there is some delay which is presumptively prejudicial,
there is no
necessity for inquiry into the other factors that go into the
balance. Nevertheless, because of the imprecision of
the right to
speedy trial, the length of delay that will provoke such an inquiry
is necessarily dependent upon the peculiar circumstances
of the case.
To take but one example, the delay that can be tolerated for an
ordinary street crime is considerably less than for
a serious,
complex conspiracy charge.





Closely
related to length of delay is the reason that government assigns to
justify the delay. Here, too, different weights should
be assigned
to different reasons. A deliberate attempt to delay the trial in
order to hamper the defence should be weighed heavily
against the
government. A more neutral reason such as negligence or overcrowded
courts should be weighed less heavily but nevertheless
should be
considered since the ultimate responsibility for such circumstances
must rest with the government rather than with the
defendant.
Finally, a valid reason such as a missing witness, should serve to
justify appropriate delay.





We
have already discussed the third factor, the defendant’s
responsibility to assert his right. Whether and how a defendant
asserts his right is closely related to the other factors we have
mentioned. The strength of his efforts will be affected by the
length of the delay, to some extent by the reason for the delay, and
most particularly by the personal prejudice, which is not always
readily identifiable, that he experiences. The more serious the
deprivation, the more likely a defendant is to complain. The
defendant’s assertion of his speedy trial right, then, is entitled
to strong evidentiary weight in determining whether the defendant
is
being deprived of the right. We emphasise that failure to assert
the right will make it difficult for a defendant to prove that
he was
denied a speedy trial.





A
fourth factor is prejudice to the defendant. Prejudice, of course,
should be assessed in the light of the interests of defendants
which
the speedy trial right was designed to protect. This Court has
identified three such interests: (i) to prevent oppressive
pre-trial
incarceration; (ii) to minimize anxiety and concern of the accused;
and (iii) to limit the possibility that the defence
will be impaired.
Of these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews
the fairness of the
entire system. If witnesses die or disappear during a delay, the
prejudice is obvious. There is also prejudice
if defence witnesses
are unable to recall accurately events of the distant past. Loss of
memory, however, is not always reflected
in the record because what
has been forgotten can rarely be shown.”






This passage was quoted with
approval by DUMBUTSHENA  CJ in
Fikilini
v Attorney-General

1990 (1) ZLR 105 (SC) at 113A-114A, and by GUBBAY  CJ in
In
re Mlambo
1991 (2) ZLR
339 (SC) at 349H-351A. The factors identified by POWELL J
have, therefore, received the approval of this Court.





In
the light of these factors, four questions arise for determination.
The first is whether the delay in bringing the applicants
to trial
was presumptively prejudicial; the second is whether the
Attorney-General gave a reasonable explanation for the delay; the
third is whether the applicants asserted their right to be tried
within a reasonable time; and the fourth is whether the applicants
have been prejudiced by the delay. I shall deal with these
questions in turn.





THE
LENGTH OF THE DELAY





As
already stated, Hativagone was formally charged on 16 April 1998
and was placed on remand on 20 April 1998. Jirivengwa
was
formally charged on 14 December 1998 and was placed on remand on
that date.





Thereafter,
on 18 February 1999 the charges against Hativagone were
withdrawn before plea, and in September 1999 the charges
against
Jirivengwa were also withdrawn before plea. In respect of both
applicants, the charges were subsequently resurrected on
31 July
2003 and the trial was set down to commence on 27 October 2003,
which date was later altered by consent to 17 November
2003.






In determining the length of
the delay the time frame commences to run from the time of arrest or
first remand, and the subsequent
withdrawal of the charges before
plea is irrelevant. That point was made by GUBBAY  CJ in
In re Mlambo supra
at 348 C-E as follows:





“Can
the State stop the clock by resorting to the expedient of withdrawing
the charge before plea, as it is permitted to do under s 297(3)
of the Criminal Procedure and Evidence Act, only to reinstate the
same charge, or a charge based on the identical information, when
in
a position to commence with the trial?





In
my opinion, the type of withdrawal envisaged in s 18(2) of the
Constitution is an irrevocable one – a withdrawal after
plea by the
Attorney-General in terms of s 13 of the Criminal Procedure and
Evidence Act, thereby entitling the accused to a
verdict of acquittal
in respect of that charge. In other words, the withdrawal must be
one in which no hearing of the charge can
ever arise. To adopt any
other construction would be to emasculate the protection the
Constitution intends to afford.”





Applying
that principle, the delay in respect of Hativagone was about
five-and-a-half years, and that in respect of Jirivengwa was
about
four years and ten months.






In my view, there can be no
doubt that the delay in bringing the applicants to trial was
presumptively prejudicial. Indeed, Mr
Shava,
who appeared for the Attorney-General, quite properly conceded this.
The first question posed above is, therefore, answered in
the
affirmative.





THE
EXPLANATION FOR THE DELAY






The explanation given by the
Attorney-General was as follows. He had waited for the completion
of a criminal trial in which the
accused was Elvis Zvinavashe
(“Elvis”), an alleged accomplice of the applicants and a former
employee of the C.M.E.D., who
had been charged with contravening a
section of the Prevention of Corruption Act [
Chapter 9:16],
and whom the Attorney-General regarded as a key State witness in the
trial of the applicants.





The
allegation against Elvis was that he had received from Hativagone a
bribe in the form of a Mazda B1800 pick-up truck as
an
inducement for him to process for payment the fictitious invoices
submitted to the C.M.E.D. by Hativagone, through Jirivengwa.
It was
alleged that Jirivengwa had handed the said invoices to Elvis with
the instruction that they be processed for payment, and
that Elvis
had complied with that instruction because he had been bribed by
Hativagone.





In
the circumstances, it was alleged that Elvis had facilitated the
issuing of the five cheques, totalling $2 796 336.33,
by
the C.M.E.D. for goods which had not been supplied or services which
had not been rendered to it. The allegations against Elvis
were,
therefore, inextricably intertwined with the allegations against the
applicants.





In
due course, Elvis was tried and convicted. However, the proceedings
were subsequently set aside by the High Court and a fresh
trial was
ordered in 2002.





The
fresh trial took place some time later and Elvis was again convicted,
and was sentenced to six years’ imprisonment with labour.
It was
only then that the Attorney-General was in a position to prosecute
the applicants. The charges against them were then
reinstated and
the applicants’ trial was set down to commence in October 2003,
with Elvis as a key witness for the prosecution.





In
my view, the Attorney-General gave a satisfactory explanation for the
delay in bringing the applicants to trial.





In
the first place, the decision by the Attorney-General to defer the
prosecution of the applicants until Elvis’ trial had been
completed
cannot be described as unreasonable, bearing in mind that Elvis was
going to be the principal State witness at the trial
of the
applicants, and that as he was an accomplice it would have been
undesirable to call him as a witness before his own trial
had been
completed.





Secondly,
the fact that Elvis had to go through a second trial, after the
proceedings in the first trial had been set aside by the
High Court,
was largely responsible for the delay in bringing the applicants to
trial, and this is not something for which the Attorney-General
could
be blamed.





In
the circumstances, the second question posed above is answered in the
affirmative.





THE
ASSERTION OF THE CONSTITUTIONAL RIGHT





As
already stated, Hativagone had been on remand for about ten months
and Jirivengwa for about nine months when the charges were
withdrawn
before plea. During those periods, the applicants must have
appeared in the magistrate's court for remand on numerous
occasions.
The issue which arises for consideration is whether, and on how many
occasions, the applicants asserted their constitutional
right to be
tried within a reasonable time.





The
issue is important because if they did not assert that right, they
could hardly complain about the delay in bringing them to
trial when
they were informed about the trial date.





The
record of the proceedings in the regional magistrate's court shows
that when Hativagone was asked by the public prosecutor how
he had
asserted his constitutional right to be tried within a reasonable
time he said that his counsel had visited the investigating
officer
at his offices, but did not say what had been discussed on that
visit. Indeed, as he had not attended the meeting, he could
not
have known what was discussed. When asked whether he had asserted
his right in court, he said “it was also raised during
the time of
remand”, but did not say how he had asserted his right, when he had
done so and on how many occasions he had done so.





Similarly,
when Jirivengwa was asked whether he had asserted his right to be
tried within a reasonable time, he said his legal practitioner
had
written a letter to the magistrate's court asking for a trial date.





On
that evidence, this Court must determine whether the applicants
asserted their right to be tried within a reasonable time.
As the
burden of proof rested on them, the Court must determine whether, on
a balance of probabilities, that burden was discharged
by the
applicants.





Bearing
in mind the evidence, there can be no doubt that the applicants
failed to discharge that burden. As they were remanded
on numerous
occasions, it is rather surprising that they gave no evidence on the
frequency and force of their objection to the delay
in bringing them
to trial. Instead, they appear to have made a half-hearted attempt
to complain about the delay on a single occasion.





In
the circumstances, the third question is answered in the negative.
That conclusion is fatal to the success of the application.





PREJUDICE





With
regard to the fourth factor, the evidence given by Hativagone was
that the delay had caused him actual prejudice in several
ways.





Firstly,
four of the five companies involved in supplying the goods or
rendering the services in question to the C.M.E.D. had closed
down
and the former employees could not easily be located. Some of them
had left the country and one had died.





Secondly,
most or all the records of his companies had been destroyed because
it was the policy of his companies that documents
which were
considered no longer relevant should be destroyed after three years.
Since the transactions in question took place in
1997, i.e. more
than three years ago, the required documents must have been
destroyed.





Thirdly,
he had tried to contact the investigating officer in the case in
order to find out what documents were required to rebut
the fraud
allegations but was informed that he had left the police force and
could not be located.





And
fourthly, since 1998 the only company of his which was still
operational had relocated on three occasions and many documents
had
been destroyed as a result.





In
the circumstances, it was submitted on behalf of Hativagone that it
was no longer possible for him to find the documents required
by him
to rebut the fraud charges.





However,
it seems to me that if the relevant documents were destroyed they
were not destroyed in the circumstances alleged. I
say so because
when Hativagone made his warned and cautioned statement on 16 April
1998, about four months after the offences
had been committed, he
undertook to produce the relevant invoices to the police but never
did.





The
relevant part of his warned and cautioned statement reads as follows:






“Question: Are you in a
position to supply documents in respect of (the) services which were
rendered and for which the payments were
made by C.M.E.D.?





Answer: The
policy in my group of companies is to get rid of documents once a
transaction has been finalised. Although at this stage
I do not
know specifically whether these were destroyed I shall check and
produce them if they are available.”






It
is important to note the contradiction between what Hativagone said
in his statement and what he subsequently said to the regional
magistrate about when the documents were to be destroyed. In his
statement he said the destruction took place once the transaction
had
been finalised, but in his evidence in the regional magistrate's
court he said documents which were considered no longer relevant
were
destroyed three years after the transaction.





Nevertheless,
it is clear that on 16 April 1998 Hativagone knew that the
relevant invoices were required by the police. He
should have taken
them to the police shortly thereafter or explained to the police why
he could not produce them, but did not do
so.





Thus,
if the relevant invoices were in his possession or that of his
companies he should have carefully kept them, bearing in mind
the
fact that he required them to rebut the fraud charges. On the other
hand, if they had already been destroyed, a trial within
a reasonable
time would not have assisted him as far as the invoices were
concerned.





It
follows, therefore, that the Attorney-General was not responsible for
any prejudice to Hativagone which was caused by the unavailability
of
the required invoices. But any prejudice caused by the
unavailability of potential witnesses would have been caused by the
delay,
in respect of which the Attorney-General gave a reasonable
explanation.





I
now wish to consider Jirivengwa’s evidence on how the delay
prejudiced him. The only valid ground on which he alleged that
the
delay had prejudiced him was the unavailability of potential
witnesses. He alleged that one had died and that it would be
difficult
to locate those potential witnesses who were no longer
working for the C.M.E.D..





In
the circumstances, and on the basis that both applicants were
prejudiced by the unavailability of potential witnesses, the fourth
question is answered in the affirmative.





Nevertheless,
the application cannot succeed for two reasons already stated. The
first is that the Attorney-General had given
a satisfactory
explanation for the delay, and the second is that the applicants had
failed to establish that they had asserted the
right to be tried
within a reasonable time.






Finally, in line with the
decision of this Court in
S
v Banga
1995 (2) ZLR
297 (S) I shall make no order as to costs.





In
the result, the application is devoid of merit and is, therefore,
dismissed.





CHEDA
JA: I agree.





ZIYAMBI
JA: I agree.





MALABA
JA: I agree.





GWAUNZA
JA: I agree.






P Kwenda & Partners,
first applicant's legal practitioners


Mhiribidi
Ngarava & Moyo
,
second applicant's legal practitioners